U.S. GOVERNMENT PRINTING OFFICE
   BOARD OF CONTRACT APPEALS
   WASHINGTON, DC  20401

In the Matter of             )
                             )
The Appeal of                )
                             )
VANIER GRAPHICS, INC.        )      Docket No. GPO BCA 12-92
Jacket No. 762-776           )
Purchase Order K-1015        )

   DECISION ON MOTIONS AND ORDER

   This appeal, timely filed by Vanier Graphics, Inc. (Appellant
   or Contractor), P.O. Box 190, Eden, North Carolina 27288, is
   from the final decision, dated December 24, 1991, of
   Contracting Officer Richard W. Wildbrett (Contracting
   Officer), of the U.S. Government Printing Office's (Respondent
   or GPO or Government), Dallas Regional Printing Procurement
   Office (DRPPO), U.S. Courthouse & Federal Office Building,
   1100 Commerce Street, Room 3D4, Dallas, Texas 75242-0395,
   partially terminating the Appellant's contract identified as
   Jacket No. 762-776, Purchase Order K-1015, for default because
   of its inability to produce a product which met the contract
   specifications (R4 File, Tab A).1  The Board held a prehearing
   telephone  conference  on  June  28, 1993,  followed  by  two
   telephone  status  conferences on October 5, 1993 and February
   8, 1994, respectively.2  See, Board Rules, Rule 10.  At the
   close of the second telephone status conference, the parties
   stated their belief that based on the evidence elicited
   through discovery, the case could be disposed of on motions
   for summary judgment.  RTSC-2, p. 4.  See, Board Rules, Rules
   14 and 15.  Accordingly, on February 25, 1994, and March 17,
   1994, respectively, the Appellant and the Respondent filed
   separate motions for summary judgment with the Board (Motion
   and Cross Motion).3  On March 7, 1994, Counsel for GPO
   submitted Respondent's Opposition to Appellant's Motion for
   Summary Judgment (Res. Opp.).  Similarly, on April 12, 1994,
   the Counsel for the Appellant filed Appellant's Opposition to
   Respondent's Motion for Summary Judgment (App. Opp.).4  For
   the reasons which follow, both the Motion and Cross Motion are
   DENIED.

   I. BACKGROUND5

   1.   This appeal stems from the DRPPO's issuance of an
   Invitation for Bids (IFB) on July 27, 1990, for the production
   of 312,000,000 (plus or minus 24,000) copies of a form
   entitled "Flight Progress Strips-Enroute" (flight strips), for
   the U.S. Department of Transportation, Federal Aviation
   Administration (FAA) (R4 File, Tab A).6  Among other things,
   after warning prospective bidders, in underlined, capital
   letter words, to "Read Carefully-This Specification Has Been
   Extensively Revised", the IFB provided, in pertinent part:

         The bidder agrees that any contract resulting from the
         bidder's offer shall be subject to all terms and
         conditions of U.S. Government Printing Office Contract
         Terms dated September 1, 1988 (GPO Pub[.] 310.2).7  In
         case of conflict the provisions of this specification
         will prevail.

   * * * * * * * * * *

         CONTINUOUS FORM REQUIREMENTS: The strips are prepared on
         any or all of the following equipment.  To function
         properly when processed through this equipment, the
         position of the printed rules and the perforations must
         not exceed the tolerances stated herein.

               Wespercorp Model 2501010 Printer
               IBM 1980 Selectric Model 1 Printer
               RO-28 Teleprinter Modified

         PINFEED HOLES: Pinfeed holes must be clean cut, 5/32
         inch diameter.  The centers of the left side holes must
         be 1/4 inch from the left edge of the form.  The first
         pinfeed hole center on the first flight progress strip
         must be 1/4 inch from the top edge of that strip.  The
         center-to-center distance on all pinfeed holes on an
         edge, or vertical spacing, must be 1/2 inch.  Horizontal
         distance between pinfeed hole centers must be 8-1/2
         inches.  The actual measured distance between pinfeed
         hole centers within any 4-foot section of continuous
         forms must not exceed the theoretical distance, but may
         be up to 1/16 inch less than the theoretical distance.
         Theoretical distance is defined as the number of spaces
         between holes multiplied by 1/2 inch.  The measurement
         will be made by removing the continuous form from the
         box and laying the form in a straight line on a flat
         surface.  The actual measured distance between pinfeed
         hole center lines within any 4-foot section on one edge
         must not differ from the same measurement made on the
         other edge by more than 1/32 inch.

         PERFORATIONS: Perforate horizontally across the entire 9
         [inch] dimension every 1[-]1/3 [inch] + .008 inch
         between strips and perforate vertically 1/2" from the
         left and right edges of the strips.

         The perforations, both horizontal and vertical, must be
         10-cut slit perforations per inch with a minimum amount
         of paper hinge between each cut.  The perforations must
         permit separation on the line of perforation after
         printout without tearing, but remain joined while
         passing through the printers.  Horizontal perforations
         must start with a tie on the left edge and continue the
         full width of the form, ending with a tie.  Tensile
         strength across perforations, using a 15mm (.6 inch)
         strip, must not exceed 3.0 KG (6.6 pounds) nor be less
         than 2.0 KG (4.4 pounds).

         Thickness of the flight progress strips at the
         perforation line between individual strips must not
         exceed 0.0005 inch greater than the average thickness of
         the individual strips.

         PRIOR-TO-PRODUCTION SAMPLES: Prior to commencing
         production, the contractor must submit for approval
         12,000 (two boxes) of prior-to-production flight strip
         samples.  The samples must be printed on the paper and
         in the ink that will be used in the complete production
         and be trimmed, marginally punched and perforated in
         exact accordance with these specifications.

         The samples will be checked for quality and compliance
         with these specifications and actual usage tests will be
         conducted using the data printers listed [above].  If,
         in the opinion of the GPO, the samples fail to comply
         with any of the specified requirements or fail to
         function properly during the usage tests, they will be
         rejected and additional samples will be required at no
         additional expense to the Government.  The [shipping]
         schedule . . . cannot be extended to allow for such
         additional sampling.  The contractor will be notified of
         approval or disapproval within 15 workdays from receipt
         of the samples in the Government Printing Office,
         Dallas, Texas.

         To maintain the shipping schedule . . . , the flight
         strip samples must be DELIVERED to the United States
         Government Printing Office in Dallas, Texas not later
         than September 7, 1990. . . .

   * * * * * * * * * *

         INSPECTION AND TESTS: Refer to Article 14, Contract
         Clauses, GPO Contract Terms, dated September 1, 1980.8
         The critical application of flight progress strips
         dictate that all physical attributes specified herein be
         subject to inspection and the contractor will be
         responsible for all testing and inspection necessary to
         produce, page, and transport flight progress strips in
         accordance with these specifications.

         The importance of uniform, adequately-cut perforations
         deep enough to permit easy separation and parallel
         alignment cannot be over-stressed.  The constant
         parallel alignment of the perforations and the pin-feed
         holes must be monitored very closely to ensure perfect
         alignment throughout the entire production.  Continuous
         quality control inspection and prompt replacement of
         dulled cutting edges are vital.  Strips having cuts
         which cause separation difficulties could contribute to
         air traffic control problems and result in unsafe flying
         conditions.

         One sample flight progress strip holder will be provided
         for contractor use.  This holder will be certified to
         conform to the correct dimensions and tolerances.  The
         holder is provided to allow the contractor to gauge the
         fit of the flight progress strips during manufacture.
         The strips produced must slide into this holder with
         what is best termed in machinery terminology as "a light
         push fit" without bending or buckling.

         QUALITY ASSURANCE: The final acceptance of these flight
         progress strips is at the destination with acceptance
         inspection as specified by MIL-STD-105D.  In brief MIL-
         STD-105D is an established method of sampling inspection
         by attributes of incoming lots of material.  Lot size
         basically determines the sample size to be selected from
         the lot and inspected.  The results of the sample
         inspection determine if the lot is accepted or rejected.
         The acceptable quality level (AQL) will be one percent
         as defined by MIL-STD-105D.  A list of these items
         include but are not limited to the following: paper
         thickness, thickness at the perforations, sizes of the
         holes, perforations, printing, basic size dimensions,
         labeling, packaging, paper type and color.

         SAMPLING PLAN: General Inspection Level II and a
         Multiple Sampling Plan with an Acceptance Quality Level
         of 1.0 Equivalent Defects per 100 items will be used to
         determine the sample size.  The unit that establishes
         the lot size used to determine the exact sampling plan
         for each shipment will be one shipping container of four
         boxes with each box having 6,000 flight strips = 24,000
         flight strips.  (Table "I", MIL-STD-105D)

         To determine the acceptance of one shipping container,
         80 flight strips will be randomly selected from one of
         the four boxes.  If no flight strips are found
         defective, the shipping container will be accepted.  If
         four or more flight strips are found defective, the
         shipping container will be rejected.  If one to three
         flight strips are found defective, another 80 flight
         strips will be randomly selected from one of the other
         three remaining boxes.  The result of the second sample
         will be accumulated with the first sample and will
         result in acceptance with one defect or rejection with
         six or more defects.  If 2 to 5 defective strips are
         found, a third sampling of 80 will be necessary, and so
         on in accordance with Table "M" MIL-STD-105D, until the
         shipping container is either accepted or rejected.

         The number of shipping containers in a shipment will
         determine the sample size (number of shipping containers
         to be inspected) to be selected from the shipment.  For
         example: Assume there are 16 shipping containers on a
         pallet and there are 52 pallets in the shipment.  The
         lot size then will be 780 shipping containers (16 x 52 =
         780).  The sample size for this lot size is 20 shipping
         containers (Table "I" MIL-STD-105D).  If 2 or more
         shipping containers are found defective, the shipment
         will be rejected.  If 1 shipping container is defective,
         a second sample of 20 shipping containers will be
         inspected and the result of that inspection will be
         accumulated with the first sampling.  The shipment will
         be accepted if no defects are found and rejected if 3 or
         more shipping containers are defective.  If a
         determination still cannot be made, a third sample of 20
         shipping containers will be necessary, and so on in
         accordance with Table "J" MIL-STD-105D, until the lot is
         either accepted or rejected.

   * * * * * * * * * *

         SCHEDULE: See "Notice of Compliance with Schedules",
         Article 12, Contact Clauses, GPO Contract Terms, dated
         September 1, 1988.

         Material will be available for pick up at the Dallas
         RPPO on: August 20, 1990

         Prior-to-production Samples delivered to Dallas RPPO by:
         September 7, 1990

         Prior-to-production samples will be available for pick
         up at the Dallas RPPO on: September 28, 1990

         Ship complete on or before: November 30, 1990

See, R4 File, Tab A, pp. 1, 3-5, 7.  Furthermore, since GPO
Contract Terms is incorporated by reference in the contract, the
following articles, in pertinent part, are relevant:

         5. Disputes.

         (a) Except as otherwise provided, any dispute concerning
         a question of fact arising under or relating to this
         contract which is not disposed of by agreement shall be
         decided by the Contracting Officer, who shall make
         his/her decision in writing and mail or otherwise
         furnish a copy thereof to the contractor.

         (b) The decision of the Contracting Officer shall be
         final and conclusive unless, within 90 days from the
         date of receipt of such copy, the contractor mails or
         otherwise furnishes written notice of appeal to the
         Government Printing Office Board of Contract Appeals.

   * * * * * * * * * *

         (d) In connection with any appeal under this article,
         the contractor shall be afforded an opportunity to be
         heard and to offer evidence in support of his/her
         appeal.  Pending final decision of a dispute hereunder,
         the contractor shall proceed diligently with performance
         and in accordance with the Contracting Officer's
         decision.

   * * * * * * * * * *

         14. Inspection and Tests.

   * * * * * * * * * *

         (b) The contractor shall provide and maintain an
         inspection system acceptable to the GPO covering
         supplies under the contract and shall tender to the
         Government for acceptance only supplies that have been
         inspected in accordance with the inspection system and
         have been found by the contractor to be in conformity
         with contract requirements. . . .

         (c) The Government has the right to inspect and test all
         supplies called for, to the extent practicable, at all
         places and times, including the period of manufacture,
         and in any event before acceptance.  The Government
         shall perform inspections and tests in a manner that
         will not unduly delay performance and assumes no
         contractual obligation to perform any inspection and
         test for the benefit of the contractor unless
         specifically set forth elsewhere.

   * * * * * * * * * *

         (f) The Government has the right either to reject or to
         require correction of nonconforming supplies.  Supplies
         are nonconforming when they are defective in material or
         workmanship or are otherwise not in conformity with
         requirements.  The Government may reject nonconforming
         supplies with or without disposition instructions.

   * * * * * * * * * *

         (h) If the contractor fails to promptly remove, replace,
         or correct rejected supplies that are required to be
         removed or replaced or corrected, the Government may
         either:

         (1) by contract or otherwise, remove, replace, or
         correct the supplies and charge the cost to the
         contractor, or

         (2) terminate for default as provided in article 20
         "Default".

   * * * * * * * * * *

         (j) The Government shall accept or reject supplies as
         promptly as practicable after delivery, unless otherwise
         provided.  Government failure to inspect and accept or
         reject the supplies shall not relieve the contractor
         from responsibility, nor impose liability on the
         Government, for nonconforming supplies.

         (k) Inspections and tests by the Government do not
         relieve the contractor of responsibility for defects or
         other failures to meet requirements before acceptance.
         Acceptance shall be conclusive, except for latent
         defects, fraud, gross mistakes amounting to fraud, or as
         otherwise provided.

         15. Warranty.

         Definitions. "Acceptance," as used in this article means
         the act of an authorized representative of the
         Government by which the Government assumes for itself,
         or as an agent of another, ownership of existing
         supplies, or approves specific services as partial or
         complete performance.

            "Correction," as used in this article, means the
            elimination of a defect.

            "Supplies," as used in this article means the end
            item furnished by the contractor and related
            services.  The word does not include data.

         (a) Contractor's obligations.  (1) Notwithstanding
         inspection and acceptance by the Government of supplies
         furnished or any condition concerning the conclusiveness
         thereof, the contractor warrants that for 120 days from
         the date of the check tendered as final payment-

               (i) All supplies furnished will be free from
               defects in material workmanship and will conform
               to all requirements; and

               (ii) The preservation, packaging, packing, and
               marking and the preparation for, and shipment of
               such supplies will conform with requirements.

            (2) When return, correction, or replacement is
            required, transportation charges and responsibility
            for the supplies while in transit shall be borne by
            the contractor.  However, the contractor's liability
            for the transportation charges shall not exceed an
            amount equal to the cost of transportation by the
            usual commercial method of shipment between the place
            of delivery specified in the contract and the
            contractor's plant, and return.

            (3) Any supplies or parts thereof, corrected or
            furnished in replacement under this clause, shall
            also be subject to the terms of this article to the
            same extent as supplies initially delivered.  The
            warranty, with respect to supplies or parts thereof,
            shall be equal in duration to that in paragraph (a)
            (1) above and shall run from the date of delivery of
            the corrected or replaced supplies.

            (4) All implied warranties of merchantability and
            "fitness for a particular purpose" are excluded from
            any obligation contained herein.

         (b) Remedies available to the Government.  (1) The
         Contracting Officer or his/her authorized representative
         shall give written notice to the contractor of any
         breach of warranties in paragraph (a)(1) above within
         120 days, unless otherwise specified, from the date of
         the check tendered as final payment.

            (2) Within a reasonable time after the notice, the
            Contracting Officer may either-

               (i) Require, by written notice, the prompt
               correction or replacement of any supplies or parts
               thereof (including preservation, packaging,
               packing, and marking) that do not conform within
               the meaning of paragraph (a)(1) above; or

               (ii) Retain such supplies and reduce the contract
               price by an amount equitable under the
               circumstances.

            (3) The rights and remedies of the Government
            provided in this article are in addition to, and do
            not limit, any rights afforded to the Government by
            any other clause.

            (4) Failure to agree on any of the determinations
            made by the Contracting Officer pursuant to this
            article shall be a dispute concerning a question of
            fact within the meaning of article 5 "Disputes".

   * * * * * * * * * *

         20. Default.

         (a)(1) The Government may, subject to paragraphs (c) and
         (d) below, by written notice of default to the
         contractor, terminate in whole or part if the contractor
         fails to-

            (i) Deliver supplies or to perform the services
            within the time specified or any extension thereof; .
            . .

   * * * * * * * * * *

         (b) If the Government terminates in whole or in part, it
         may acquire, under the terms and in the manner the
         Contracting Officer considers appropriate, supplies or
         services similar to those terminated, and the contractor
         will be liable to the Government for any excess costs
         for those supplies or services.  However, the contractor
         shall continue the work not terminated.

         (c) . . . [T]he contractor shall not be liable for any
         excess costs if the failure to perform arises from
         causes beyond the control and without the fault or
         negligence of the contractor.  Examples of such causes
         include acts of God or of the public enemy, acts of the
         Government in either its sovereign or contractual
         capacity, fires, floods, epidemics, quarantine
         restrictions, strikes, freight embargoes, and unusually
         severe weather.  In each instance, the failure to
         perform must be beyond the control and without the fault
         or negligence of the contractor.

   * * * * * * * * * *

         (f) The Government shall pay the contract price for
         completed supplies delivered and accepted.  The
         contractor and Contracting Officer shall agree on the
         amount of payment for manufacturing materials delivered
         and accepted and for the protection and preservation of
         the property.  Failure to agree will be a dispute under
         article 5 "Disputes." . . .

         (g) If, after termination, it is determined that the
         contractor was not in default, or that the default was
         excusable, the rights and obligations of the parties
         shall be the same as if the termination had been issued
         for the convenience of the Government.

   * * * * * * * * * *

         24. Payments on Purchase Order.

         (a) Payment will be made to the contractor upon
         submission of a proper voucher . . . [with supporting
         shipping and delivery documentation, as listed].

   * * * * * * * * * *

         (b) Checks tendered by GPO in payment of any invoice
         submitted by the contractor, whether equal to or less
         than the amount invoiced, are tendered as final payment.
         Acceptance of payment of any check so tendered shall
         operate as a bar to the assertion of any exceptions by
         the contractor to the amount paid by GPO unless the
         contractor notifies the Contracting Officer in writing
         within 60 calendar days of the date of such check.  Such
         notice shall specify the exceptions taken to the sum
         tendered, and the reasons therefor.

GPO Contract Terms, Contract Clauses, Arts. 5, 14, 15, 20 and 24.

   2.   On August 15, 1990, the Contracting Officer issued
   Purchase Order K-1015 awarding the contract to the Appellant,
   who had submitted a low bid of $471,120.00 (R4 File, Tabs B, C
   and D).

   3.   The Appellant timely provided GPO with the required
   12,000 prior-to-production samples required under the
   specifications.9  Res. R.,  4, 5; RPTC, p. 5.  Thereafter,
   all quality control tests on the prior-to-production samples
   were performed by the FAA and GPO, and the samples were
   approved without modification.  Res. R.,  8-12.  By letter
   dated September 21, 1990, the Respondent notified the
   Contractor that based on the FAA's review and approval of the
   prior-to-production samples, it was authorized to begin
   production and delivery of the flight strips.  Res. R.,  13;
   App. Exh. No. 1.10

   4.   Between October 22, 1990 and November 21, 1990, the
   Appellant produced and shipped the entire ordered quantity of
   312,000,000 flight strips to the FAA's facility in Oklahoma
   City, Oklahoma, in 17 separate installments (thus completing
   deliveries before the contract due date).  Res. R.,  15, 18;
   RPTC, p. 3.  However, while production run samples were
   submitted with each shipment, the samples were never subjected
   to quality control tests, either by the FAA or GPO, on receipt
   of the delivery.  Res. R.;  21, 22; RPTC, p. 5.  After all
   deliveries were completed, the Respondent paid the Appellant
   the contract price in two separate checks, dated December 10,
   1990 and December 19, 1990, in the amounts of $223,238.40 and
   $246,678.00; respectively.  Res. R.,  24; RPTC, p. 5.

   5.   After the Appellant had been paid, the FAA examined the
   shipments of flight strips.11  RPTC, p. 3.  Although the dates
   of inspection for all of the deliveries is not known, the
   Respondent admits that the following shipments were inspected
   on the dates indicated:

              SHIPMENT               DATE
            Shipment No. 3         January 15, 1991
            Shipment No. 4         January 25, 1991
            Shipment No. 5         February 1, 1991
            Shipment No. 6         February 20, 1991
            Shipment No. 7         February 20, 1991
            Shipment No. 10         February 20, 1991
            Shipment No. 11         November 30, 1990
            Shipment No. 12         February 20, 1991
            Shipment No. 13         February 20, 1991

See, Res. R.,  23.  Based on its examination, the FAA concluded
that the Appellant's flight strips had several critical quality
defects; i.e., misalignment of the left and right pinfeed holes
(the centers of the left and right pinfeed holes were not
parallel to the horizontal perforation); and (2) the 1/4 inch
space between the bottommost horizontal rule and the horizontal
perforation varied from .2188 inch to .2812 inch (a variation of
plus/minus .0312), whereas the tolerance for this criterion was
plus/minus .008 inch (R4 File, Tabs E and M).  RPTC, p. 3.
Consequently, by "Speed Memo" dated January 22, 1991, the FAA
notified GPO of its intention to reject the entire order of
312,000,000 flight strips (R4 File, Tab E).  Res. R.,  26, 27;
App. Exh. No. 2.

   6.   On receipt of the FAA's "Speed Memo", the Respondent
   conducted its own random inspection of flight strip samples,
   including production-run samples sent to GPO by the Appellant
   and additional samples supplied by the FAA, and concluded that
   the forms met the contract specifications.  Res. R.,  28-30.
   In light of these findings, the Contracting Officer determined
   that he could find no contractual basis for requiring the
   Appellant to reprint the flight strips, and so informed the
   FAA in a letter dated February 14, 1991.  Res. R.,  31-33;
   App. Exh. No. 3.  The Contracting Officer told the FAA, in
   pertinent part:

         The samples you provided were inspected in accordance
         with the specifications.  We also inspected 15 separate
         boxes of 6,000 flight strips each that were submitted by
         the contractor and represent the 15 incremental
         shipments made during the period of October 22 through
         November 19, 1990.

         All the dimensions of the individual forms were checked
         to ensure they were in accordance with the
         specifications.  A four foot section of the forms from
         each of the sample lots and from the 15 boxes was
         checked to ensure it was in accordance with the pinfeed
         holes [sic] requirements.  In addition, the 15 boxes of
         forms were inspected for other types of defects such as
         scumming, hickies, plate scratches and ink spots.

         The result of the inspection is that the individual
         forms are within the specified dimensional tolerances.
         The four foot section of forms does reveal a
         misalignment between the left and right pinfeed holes,
         but this misalignment does not exceed 1/32", which is
         within the limits of the specifications.  An occasional
         plate scratch or ink spot was found in some of the 15
         boxes of forms but these defects are not sufficient to
         warrant rejection.

         Accordingly, we can find no contractual basis upon which
         we could require the contractor to reprint the forms.
         We regret any dissatisfaction you may have with the
         order.  However, the circumstances preclude any action
         against the contractor.

See, App. Exh. No. 3.  [Emphasis added.]

   7.   There is nothing in the record to disclose what
   transpired between the Respondent and the FAA about this
   matter over the next two months.  However, on April 11, 1991,
   the Contracting Office wrote the following letter to the
   Appellant:
         This is to advise you that we have received a complaint
         from our client regarding the flight progress strips
         procured from your firm on Jacket 762-776, Purchase
         Order K-1015.

         The samples are being inspected in accordance with the
         specifications.  The list of concerns includes items
         such as misalignment between the left and right pinfeed
         holes, ink spots and plate scratches.

         Upon completion of our inspection, we will advise you of
         our findings.

See, R4 File, Tab F; App. Exh. No. 4.  This letter, notifying the
Contractor of FAA's complaint about the quality of the flight
strips, was the first inkling the Appellant had there was a
problem with the forms it delivered (R4 File, Tab L, p. 2).  Res.
R.,  34-36; RPTC, p. 5.

   8.   Early in May 1991, after receiving the Contracting
   Officer's letter, the Appellant and the DRPPO talked several
   times about the problems with the flight strips.  As a result
   of their discussions, the parties arranged a joint on-site
   inspection of the forms at the FAA warehouse on May 13, 1991
   (R4 File, Tab H).12  Mr. David Gusler, who represented the
   Contractor for the purpose of this inspection, participated in
   the examination of sample flight strips at the FAA's facility,
   and he also took samples from the warehouse back to the
   Appellant's plant for an independent inspection (R4 File, Tabs
   H and I).  Based on its own examination, the Appellant wrote
   to Duane Kemmett, the DRPPO's representative, on May 23, 1991,
   disagreeing with the Respondent's conclusion that the forms it
   shipped were defective (R4 File, Tab J).  In that regard, the
   Contractor stated, in pertinent part:

         . . . [W]e have concluded the following:

         1.  Our product conforms to the copy submitted to us for
         duplication by the G.P.O. at the time the order was
         entered in August of 1990.

         2.  Our product is of the same quality as the Prior to
         Production samples that we produced for approval and
         shipped to the G.P.O. in Dallas, Texas on [September 5,
         1990].  These samples were approved in writing by the
         G.P.O. on [September 24, 1990].

         3.  Our product is of the same acceptable quality as
         previous flight strip orders that we have produced for
         the FAA.  The last order produced by us prior to the
         order in question was in March of 1989.  As you are
         probably aware, we have been producing this form or some
         variation of it for over 20 years.  To our knowledge, we
         have never received a complaint until now. . . .

   * * * * * * * * * *

         After careful examination of all factors, we see no
         reason why our product will not run efficiently.  [We]
         understand that the FAA has been using our forms for
         several months at various installations and that
         approximately [1/3] of the forms in question have been
         used.

   * * * * * * * * * *

         After discussing this situation, we feel that the
         problem may well be with the FAA printers not being
         adjusted properly.  We also feel that any printer that
         is in a reasonably good state of repair and set properly
         should run our forms without problems.

See, R4 File, Tab J, pp. 1-2.

   9.   On June 17, 1991, the Contracting Officer sent a reply
   letter to the Appellant, in which he said, in pertinent part:

         The flaws detected during the inspection process are
         such that individual flight strips do not meet
         specifications.  Additionally, the accumulative effect
         of the flaws could result in the misinterpretation of
         data imprinted on the flight strips with the possibility
         of catastrophic consequences.  These flaws were pointed
         out to Mr. David Gusler of your Eden Division during his
         inspection of the flight strips in Oklahoma City.

         Although multiple inspections by GPO and the FAA bear
         out our conclusion that the job is defective, a critical
         requirement of the Government forced the FAA to use some
         of the rejectable strips.  When issuing these strips,
         FAA incurred additional expense to include warnings to
         all users of the strips to be alert to the defects they
         contain and take appropriate precautions.  In all,
         90,240,000 flight strips were issued with user warnings
         included.  The remaining 221,760,000 flight strips are
         rejected and must be replaced. . . .

         The replacement flight strips may be shipped
         incrementally but only as full trailer loads.  Complete
         shipment must be accomplished by August 26, 1991.

See, R4 File, Tab K.  [Emphasis added.]  See also, Res. R.,  38;
App. Exh. No. 5; RPTC, pp. 3, 5.

   10.  Following this exchange of letters, all of the parties-
   the Appellant, the FAA and GPO-corresponded and met several
   times about the complaints with the flight strips.  Res. R., 
   39; App. A.,  20.  Eventually, on June 26, 1991, the
   Appellant wrote another letter to the Contracting Officer,
   affirming its position in the dispute, and stating, in
   pertinent part:

         1) the initial "prior-to-production" samples were in
         compliance with the specification and so approved by
         letter of September 21, 1990;

         2) after final shipment in November of 1990, the
         Government inspected and accepted all the shipments by
         making final payment on this purchase order in December
         1990;

         3) the FAA utilized approximately 90,000,000 of these
         forms and experienced some difficulty but has been
         unable to define the cause and still has not identified
         to date precisely how the material supplied by Vanier
         Graphics did not meet the specification; and

         4) the specification is quite clear as to how these
         materials were to be inspected, sampled an accepted or
         rejected upon delivery, not months later while in use at
         various FAA locations.

         It is Vanier Graphics' position, therefore, that Vanier
         Graphics has performed within the terms and conditions
         of the contract, has delivered this order in its
         entirety in a timely fashion in compliance with the
         specification, and has no further contractual obligation
         to the Government Printing Office under this purchase
         order.  Furthermore, the Government has accepted all
         shipments and has no contractual right to reject these
         materials as alluded to in the letter of June 17, 1991.
         Should the Government not utilize these forms and
         dispose of them in any manner, it does so at its own
         risk and Vanier Graphics denies any responsibility for
         the results of such action

See, R4 File, Tab L, pp. 3-4.  [Original emphasis.]

   11.  Thereafter, by letter dated August 13, 1991, the
   Contracting Officer rejected the balance of the ordered
   forms-221,760,000 flight strips-and instructed the Appellant
   to reprint them by October 15, 1991, at no cost to the
   Government (R4 File, Tab M).  Res. R.,  40; RPTC, p. 3.
   After reiterating the defects found in the forms by the FAA in
   its warehouse inspections, the Contracting Officer further
   stated:

         When we reviewed the prior-to-production samples your
         firm submitted, we did not find these defects.  If the
         production run had duplicated the prior-to-production
         samples, the order would be acceptable.  However, your
         firm has failed to follow the specifications or to
         understand that the tolerances are critical.  Page 1 of
         the specifications explicitly states "Read carefully-
         this specification has been extensively revised".  Your
         firm was required to create the forms in accordance with
         the drawing in the specifications.  Previous production
         of this form by your firm is not relevant to this order.

         . . . [T]he Contracting Officer has determined that you
         are to reprint the remaining rejected 221,760,000 flight
         strips, at no additional expense to the Government.
         Complete shipment is required by October 15, 1991.
         Disposition of the rejected forms will be at your
         expense. . . .

         This is the final decision of the Contracting Officer.
         You may appeal this decision to [the Board] . . . within
         90 days from the date you receive this decision . . .

See, R4 File, Tab M, pp. 1, 2.  [Emphasis added.]  It is self-
evident that the letter sent to the Appellant more than 120 days
after final payment of the contract price. App. A.,  19.

   12.  It is undisputed that the Contractor did not reprint the
   rejected flight strips.  RPTC, p. 3.  Neither did the
   Appellant immediately appeal the Contracting Officer's
   decision to the Board.  Instead, the record shows that after
   August 13, 1991, the parties continued their efforts  to
   resolve the matter.  Res. R.,  41; App. A.,  21.  Indeed, in
   October 1991, the Contracting Officer agreed to contact the
   FAA to propose another joint inspection of the flight strips.
   Res. R.,  42-43; App. A.,  21.  However, on December 24,
   1991, without any further action on the joint inspection
   proposal, the Contracting Officer issued a "Partial
   Termination Notice", defaulting the contract because of the
   Appellant's "inability to produce the forms in accordance with
   the specifications[.]" (R4 File, Tab N).13  Res. R.,  44,
   47; RPTC, p. 3-4.

   13.  The record reveals that even after the Contracting
   Officer's default termination decision, the parties continued
   to discuss the possibility of a joint inspection of the flight
   strips, but negotiations broke off because of GPO's insistence
   that the Contractor "forfeit its rights under the contract"
   (R4 File, Tabs O, P, Q, R, T, U, and V).  App. A.,  21.
   Accordingly, by letter dated March 11, 1992, the Appellant
   timely appealed the Contracting Officer's default decision to
   the Board (R4 File, Tab W).

   II. APPELLANT'S MOTION

   The Appellant's Motion is based on a very simple predicate,
   namely, that GPO's rejection of the flight strips and the
   direction to replace them, is untimely.  Motion, p. 4.  The
   Contractor contends both events occurred approximately six
   months after it had completed deliveries under the contract
   and final payment had been made by the Respondent.  Motion,
   pp. 4-5.  Consequently, assuming arguendo that the forms were
   defective and the Appellant refused to comply with the
   Contracting Officer's direction to reprint them, there is no
   basis for a default termination under the terms of the
   contract, as well as settled principles of law.  Motion, p. 5.

   The Appellant relies on the "Inspection and Tests," "Warranty"
   and "Payment on Purchase Order" clauses of the contract, to
   support the argument that GPO itself failed to meet its
   responsibilities under the contract by failing to promptly
   accept or reject the flight strips within the warranty period,
   and therefore the final payment check issued to the Contractor
   more than 120 days prior to rejection of the forms effectively
   extinguished the Government's right to do so.  Motion, pp. 5-6
   (citing, GPO Contract Terms, Contract Clauses, Arts. 14, 15
   and 24.  Also citing, Industrionics, Inc., GPO CAB 5-82
   (October 21, 1982), Sl. op. at 4, 1982 Westlaw 122,516, at 2
   (GPOBCA);14 Automated Datatron, Inc., GPOBCA 25-87 and 26-87
   (April 12, 1989), Sl. op. at 13, 1989 Westlaw 384,974, at 5
   (GPOBCA); DuBois Construction Corporation v. United States, 98
   F.Supp. 590, 598, 120 Ct.Cl. 139 (1951); Poole Engineering &
   Machine Company v. United States, 57 Ct.Cl. 232, 234 (1922)).
   In addition, the Appellant believes that when the Contracting
   Officer informed the FAA, on February 14, 1991, that there was
   no contractual basis for requiring a reprint of the flight
   strips, he was essentially acknowledging the acceptance of the
   forms.  Motion, p. 6 (citing, GPO Contract Terms, Contract
   Clauses, Art. 15; App. Exh. No. 3).  Thus, the Contractor also
   contends that the facts of this case show that GPO waived any
   right it may have had to reject the flight strips and default
   the contract.  Id.

   Finally, the Appellant believes that the Respondent's reliance
   on the "Warranty" clause to support its default decision is
   misplaced, because GPO did not comply with the requirements of
   that clause.  Id.  The linchpin of the Contractor's view is
   its contention that the Respondent never gave the Appellant
   proper written notice of a breach of warranty.  See, GPO
   Contract Terms, Contract Clauses, Art. 15(b)(1).  Two letters
   were sent to the Appellant by the Contracting Officer about
   this matter-the first on April 11, 1991, and the other on June
   17, 1991 (R4 File, Tabs F and K).  In that regard, the
   Contractor argues that the "rejection" letter of June 17,
   1991, was simply too late to invoke any of the Respondent's
   rights under the "Warranty" clause.  Motion, p. 7.  As for the
   Respondent's letter of April 11, 1991, which was admittedly
   sent within the warranty period,15 the Appellant contends that
   it did not meet the minimal requirements for an effective
   notice of a breach of warranty, since no mention was made of
   the "Warranty" clause, and only talked about the FAA's
   "complaint" and "concerns", rather than any specific
   defects.16  Motion, pp. 7-8 (citing, Oswald Schicker
   Manufacturing Company, ASBCA No. 16836, 72-2 BCA  9,614).
   Therefore, the Contractor believes that the undisputed
   material facts in this case entitles it to summary judgment.17
   Motion, p. 8.

   The Respondent also relies on the "Warranty" clause to support
   its position, but naturally sees matters differently than the
   Appellant.18  In that regard, the Respondent believes that the
   Contracting Officer's April 11, 1991, letter was sufficiently
   detailed to satisfy the clause's notice requirements.  Res.
   Opp., p. 3.  Indeed, the Contracting Officer specifically
   states that the intention of his April 11, 1991, letter was to
   "place Vanier on notice of the defects . . . , and advise them
   that additional inspections would be undertaken."  See, Res.
   Opp., Wildbrett Declaration,  4.  Under the traditional view
   attached to warranty clauses, the Appellant's promised, in
   effect, that it would furnish conforming supplies,
   notwithstanding the Government's rights concerning inspection
   and acceptance.19  Res. Opp., p. 4.  Thus, the keystone of the
   Respondent's position is the well-settled doctrine of public
   contract law which entitles the Government to strict
   compliance with its contract specifications.  Res. Opp., p. 4
   (citing, Jefferson Construction Co. v. United States, 151
   Ct.Cl. 75 (1960); Red Circle Corporation v. United States, 185
   Ct.Cl. 1, 8 (1968); American Electric Contracting Corporation
   v. United States, 579 F.2d 602, 608 (1978); Dependable
   Printing Company, Inc., GPO BCA 5-84 (September 12, 1985)).
   The strict compliance rule is enforced either by rejecting the
   defective product, or if the Government deems it in its best
   interest, accepting the nonconforming supplies at a discounted
   price.  Res. Opp., pp. 4-5.  Acceptance or rejection of a
   nonconforming product is solely within the discretion of the
   procuring agency, and the Government cannot be compelled to
   accept a defective product at a reduced price, even if the
   defects are relatively minor.  Res. Opp., p. 5 (citing, Famous
   Model Company, Inc., ASBCA No. 12526, 68-1 BCA  6,902; Cherry
   Meat Packers, Inc., ASBCA No. 8974, 1963 BCA  3,937).  From
   this statement of "black letter" law, the Respondent reasons
   that it had the right to obtain the exact supplies for which
   it bargained, and to assert its remedies under the "Warranty"
   clause when they were not delivered.  Id. (citing, Wisconsin
   Machine Corporation, ASBCA No. 18500, 74-1 BCA  10,397, at
   49,096-97.

   The Respondent argues that all that is required to invoke
   GPO's "Warranty" clause is for the Contracting Officer to
   issue a written notice to the Contractor advising of a breach
   of warranty within 120 days of the date of final payment.  Id.
   (citing, GPO Contract Terms, Contract Clauses, Art. 15(b)(1)).
   The Respondent contends that the Contracting Officer's letter
   of April 11, 1991, which informed the Appellant that based on
   a complaint from the FAA, its printed product appeared to be
   defective, and that the results of a complete inspection would
   be forthcoming (R4 File, Tab F), satisfied the requirements of
   the "Warranty" clause.  Id.  In the Respondent's view, the
   letter placed the Appellant on notice that the forms contained
   a defect "in material or workmanship" or were not in
   compliance with contract specifications; nothing more was
   required.  Res. Opp., p. 6 (citing, Utility Trailer Sales
   Company, ASBCA No. 4689, 58-2 BCA  1,948, mot. for reconsid.
   denied, 59-1 BCA  2,085).  Furthermore, the Respondent
   believes that the case cited by the Appellant as an example of
   the degree of specificity required in a notice of breach of
   warranty, Oswald Schicker Manufacturing Company, supra, 72-2
   BCA  9,614, while dealing primarily with the timeliness of
   the contracting officer's written notice, equally supports
   GPO's position that the amount of detail required by the
   notice is something less than that insisted on by the
   Contractor.20  Id. (citing, Oswald Schicker Manufacturing
   Company, supra, 72-2 BCA  9,614, at 44,941).  See also,
   Brown's Van and Storage Company, ASBCA No. 34258, 89-1 BCA 
   21,251;  Phoenix Steel Container Company, Inc., ASBCA No.
   9987, 66-2 BCA  5,814; National Carbon, 53 ASBCA No. 1310.

   Finally, the Respondent contends that contrary to the
   Appellant's belief, the Government did not waive its right to
   default the contract by taking an unreasonable time to select
   its remedy under the "Warranty" clause (have the Contractor
   replace the defective flight strips), once its provisions had
   been invoked.  Res. Opp., p. 7.  See, GPO Contract Terms,
   Contract Clauses, Art. 15(b)(1).  In that regard, the
   Respondent notes that the time between April 11, 1991, and
   June 17, 1991, was spent by the FAA, GPO and the Appellant
   inspecting and testing the flight strips to find out
   definitely if they met the specifications, and working with
   the Contractor to resolve the problem once it was determined
   they did not.  Id. (citing, Jung Ah Industrial Company, ASBCA
   No. 22632, 79-1 BCA  13,643, mot. for reconsid. denied, 79-2
   BCA  13,916).  The Respondent believes that two months was
   not an unreasonable amount of time for this purpose, and for
   deciding on the appropriate remedy.  Res. Opp., p. 8.
   Accordingly, the Respondent argues that the Appellant is not
   entitled to judgment as a matter of law, and urges the Board
   to deny the Motion.  Id.

   III. RESPONDENT'S CROSS MOTION

   Although the Respondent opposes the Appellant's Motion
   primarily on "strict compliance" principles, its Cross Motion
   takes a totally different tack in seeking judgment for its
   cause as a matter of law.21  While the reason given for
   defaulting the Appellant's contract was the failure to produce
   flight strips conforming to the contract specifications (R4
   File, Tab N), the Respondent seeks summary judgment on the
   ground that the Contractor's refusal to reprint the forms, as
   directed by the Contracting Officer in his final decision of
   August 13, 1991 (R4 File, Tab M), constitutes a legitimate
   reason for default, in and of itself.22  Cross Motion, p. 3.
   According to the Respondent, the law requires a contractor to
   continue to follow the Contracting Officer's instructions
   regarding performance while a dispute is pending, and its
   failure to do so will sustain a default decision without
   regard to the merits of the underlying dispute.  Cross Motion,
   pp. 3-4 (citing, Sterling Electronics, Inc., ASBCA No. 8450,
   1964 BCA  4,092; James E. White, PSBCA No. 1022, 82-2 BCA 
   15,896).  The condition precedent for application of the rule
   is the issuance of a final decision by the Contracting
   Officer, directing the contractor's continued performance.
   Cross Motion, p. 4 (citing, Fraass Surgical Manufacturing
   Company v. United States, 505 F.2d 707 (Ct.Cl. 1974); Zindell
   Explorations, Inc. v. United States, 427 F.2d 735 (Ct.Cl.
   1970).

   The Respondent notes that GPO's "Disputes" clause applies this
   same principle to GPO contracts.  Cross Motion, pp. 4-5
   (citing, GPO Contract Terms, Contract Clauses, Art. 5(d)).
   Furthermore, the Board and its predecessor ad hoc boards have
   upheld the doctrine of "continued performance" by a contractor
   while an appeal is pending, in numerous cases.  Cross Motion,
   pp. 5-7 (citing, The American Press, Inc., GPOCAB 17-84
   (January 4, 1991), Sl. op. at 14; Stabbe Senter Press, GPO BCA
   13-85 (May 12, 1989), Sl. op. 47-48; Nor Cal Trade School of
   Offset Printing, GPOBCA 1-85 (September 12, 986), Sl. op. at
   9; ATC Decal Company, GPOCAB 3-81 (July 14, 1981), Sl. op. at
   6; Brenner Printing Company, GPOBCA 3-80 (1980), Sl. op. at
   11.  See also, Timsco, Inc., GPOCAB 10-78 (July 24, 1979)).
   In addition, GPO's "Inspection and Tests" clause allows the
   Respondent to default a contractor who fails to replace or
   correct rejected supplies.  Cross Motion, p. 7 (citing, GPO
   Contract Terms, Contract Clauses, Art. 14(h)(2)).  Of course,
   a contractor must be given a reasonable time to comply with
   the Contracting Officer's directions to replace or correct the
   rejected items.  Id. (citing, Shepard (1993), supra, Sl. op.
   at 23.

   The Respondent argues that in this case, the Contracting
   Officer gave the Appellant clear instructions on August 13,
   1991, to replace a portion of the defective flight strips (R4
   File, Tab M).  Cross Motion, p. 4.  Instead of doing so, the
   Contractor disputed the Contracting Officer's findings that
   the flight strips were defective, and made repeated proposals
   to the Contracting Officer (R4 File, Tabs J, L, Q and T).23
   Id.  The Respondent believes that the Appellant was afforded
   more than a reasonable opportunity to replace the forms, as
   directed by the Contracting Officer. Cross Motion, p. 7.
   Since the Contractor failed to do so, the Respondent contends
   that it is entitled to summary judgment in its favor.  Cross
   Motion, p. 8.

   The Appellant opposes the Respondent's Cross Motion on several
   grounds.24  However, with regard to the specific contention
   raised by the Respondent, namely that Contractor failed to
   comply with the Contracting Officer's direction to reprint the
   defective flight strips, the Appellant flatly denies it.  App.
   Opp., Attachment, Affidavit of John H. Horne, Esq.,  2 (Horne
   Affidavit).  Furthermore, according to the Appellant,
   throughout this period the parties continued to work toward an
   equitable resolution of this matter, and indeed, the
   Contracting Officer himself kept changing the reprint
   deadlines.  App. Opp., p. 11; Horne Affidavit,  2-4.  The
   Contractor notes that other appeals boards have repeatedly
   overturned precipitous default terminations effected in the
   midst of such a dialogue.  Id. (citing, Delfour, Inc., VABCA
   Nos. 2049, 2215, 2539, 2540, 89-1 BCA  21,394, at 107,855-58;
   Engineering & Professional Services, Inc., ASBCA No. 39164,
   1994 ASBCA LEXIS 48, at 14-15).  Accordingly, the Appellant
   reaffirms its own right to summary judgment, and asks the
   Board to deny the Respondent's Cross Motion, as without merit.
   App. Opp., p. 12.

   IV. DECISION

   There is nothing in the Board Rules expressly providing for
   motions for summary judgment.25  However, the Board has
   traditionally entertained such motions, even in the absence of
   such an express authorization.  See, e.g., RBP Chemical
   Corporation, GPO BCA 4-91 (January 23, 1992); Castillo
   Printing Company, GPO BCA 10-90 (May 7, 1991); International
   Lithographing, Inc., GPO BCA 18-88 (February 21, 1990).  In
   deciding summary judgment motions, the Board is guided by Rule
   56 of the Federal Rules of Civil Procedure.  RBP Chemical
   Corporation, supra, Sl. op. at 17-18; Castillo Printing
   Company, supra, Sl. op. at 22.  Accord, Christie-Willamette,
   NASA BCA 283-4, 87-3 BCA  19,981 (citing, Astro Dynamics,
   Inc., NASA BCA  476-1, 77-1 BCA  12.230); Automated
   Services, Inc., EBCA Nos. 386-3-87, 391-5-87, 87-3 BCA 
   20,157.

   Two years ago, in RBP Chemical Corporation, a summary
   proceeding involving a fact situation practically identical to
   the circumstances of this case, the Board set forth, in
   detail, the principles which it would apply in ruling on
   summary judgment motions.  In that regard, the Board stated,
   in pertinent part:

         In ruling on motions for summary judgment, this Board
         applies the rule which permits summary judgment if the
         pleadings, the Rule 4 [F]ile, the results of any
         discovery, and affidavits (when submitted) show that
         there is no genuine issue of any material fact and the
         moving party is entitled to judgment as a matter of law.
         See, Castillo Printing Company, GPO BCA 10-90 (May 7,
         1991), Sl. op. at 22.  FED. R. CIV. P. 56(c). Accord,
         Ite, Incorporated, NASA BCA No. 1086-6, 88-1 BCA 
         20,269; R & D Associates, ASBCA No. 30738, 30750, 86-3 
         19,062.

   * * * * * * * * * *

         This Board regards a default termination as a drastic
         action, which should only be taken for good cause and on
         the basis of solid evidence.26  See, e.g., Stephenson,
         Inc., supra, Sl. op. at 19.  Accord, Mary Rogers Manley
         d/b/a Mary Rogers Real Estate, HUDBCA No. 76-27, 78-2
         BCA  13,519; Avco Corporation, Avco Electronics
         Division, NASA BCA No. 869-18, 76-1 BCA  11,736;
         Decatur Realty Sales, HUDBCA No. 75-26, 77-2 BCA 
         12,567.  Similarly, the Board also recognizes that a
         summary judgment proceeding is, by its nature, a
         "drastic device" for disposing of litigation.27  See,
         Castillo Printing Company, supra, Sl. op. at 20 (citing,
         IBM Poughkeepsie Employees Federal Credit Union v. Cumis
         Insurance Society, Inc., 590 F.Supp. 769, 771
         (D.S.D.N.Y. 1984); Jaroslawicz v. Seedman, 528 F.2d 727,
         731 (2d Cir. 1975)).  Nonetheless, summary judgment is
         appropriate if there is no genuine issue of any material
         fact in the record.28  As recently explained by the
         Board:

            Under Rule 56(c) of the Federal Rules of Civil
            Procedure, courts are instructed to grant a motion
            for summary judgment if the pleadings and supporting
            affidavits and other submissions "show that there is
            no genuine issue as to any material fact and that the
            moving party is entitled to judgment as a matter of
            law."  FED. R. CIV. P. 56(c).  Thus, the principal
            judicial inquiry required by Rule 56 is whether a
            genuine issue of material fact exists. [Footnote
            omitted.]  Stated otherwise, on a motion for summary
            judgment, a court cannot try issues of fact; it can
            only determine whether there are issues to be tried.
            See, e.g., IBM Poughkeepsie Employees Federal Credit
            Union v. Cumis Insurance Society, Inc., 590 F.Supp.
            at 771 (citing, Schering Corporation v. Home
            Insurance Co., 712 F.2d 4, 9 (2d Cir. 1983).  Is no
            such issue exists, the rule permits the immediate
            entry of judgment.  See, e.g., Reingold v. Deloitte
            Haskins and Sells, 599 F.Supp. 1241, 1261 (D.S.D.N.Y.
            1984); United States v. ACB Sales and Service, Inc.,
            590 F.Supp. 561 (D. Ariz. 1984).  [Original
            emphasis.]

         Castillo Printing Company, supra, Sl. op. at 21-22.

         As indicated, the Board's function in deciding a motion
         for summary judgment is not to resolve any questions of
         material fact, but only to ascertain whether any such
         questions exist.  Id.  See, also, John's Janitorial
         Services, Inc., ASBCA No. 34234, 90-3 BCA  22,973
         (citing, General Dynamics Corporation, ASBCA Nos. 32660,
         32661, 89-2 BCA  21,851); Ite, Incorporated supra, 88-1
         BCA  20,269, (citing, B.S.A. Painting Company, Inc.,
         ASBCA No. 32060, 87-1 BCA  19,367).  It is not
         necessary or appropriate to make explicit factual
         findings for purposes of ruling on the motion.  Id
         (citing, Lemelson v. TRW, Inc., 760 F.2d 1254, 1260
         (Fed. Cir. 1985); Pioneer Services, Inc., NASA BCA Nos.
         578-9, 578-10, 81-2 BCA  15,164).

         . . .[T]he burden is on the party moving for summary
         judgment to demonstrate that there is no genuine issue
         as to any material fact and that it is entitled to
         judgment as a matter of law.29  Id. See, e.g., Adickes
         v. S. H. Kress & Company, 398 U.S. 144, 157 (1970);
         Rodway v. Department of Agriculture, 482 F.2d 722 (D.C.
         Cir. 1973);  Weisberg v. Department of Justice, 438
         F.Supp. 492 (D.D.C. 1977).  Furthermore, as the
         Appellant recognizes, before a court will grant the
         motion it must be satisfied that the truth is clear and
         any doubt will be resolved against the movant.  Id.
         (citing, Adickes v. S. H. Kress & Company, supra, 398
         U.S. 144, 157).  See also, Poller v. Columbia
         Broadcasting System, Inc., 368 U.S. 464 (1962); Union
         Carbide Corporation v. American Can Company, 724 F.2d
         1567, 1571 (Fed. Cir. 1984); Washington v. Cameron, 411
         F. 2d 705 (D.C. Cir. 1969); B & A Electric Company,
         Inc., ASBCA No. 33667, 87-1 BCA  19,606.  Essentially,
         this means that the record evidence in summary judgment
         proceedings is construed in favor of the party against
         whom the motion is raised, and the non-mover receives
         the benefit of all favorable inferences that can be
         drawn from it.  See, e.g., United States v. General
         Motors Corporation, 518 F.2d 420, 442 (D.C. Cir. 1975);
         Federal Savings and Loan Insurance Corporation v.
         Williams, 599 F.Supp. 1184, 1192 (D.Md. 1984); Turner v.
         United States, 553 F.Supp. 347, 349 (D.Va. 1982);
         Weisberg v. Department Justice, 438 F.Supp. 492 (D.D.C.
         1977).
   * * * * * * * * * *

         Even though the nonmoving party in summary judgment
         proceedings receives the benefit of all favorable
         evidence and inferences, this does not mean that it has
         no evidentiary responsibilities at all.  Admittedly, the
         burden on the nonmoving party is not a heavy one; it is
         simple required to go beyond allegations in the
         pleadings and designate specific facts in the record or
         by affidavits to show there is a genuine issue to be
         heard.30  See, e.g., McDonnell v. Flaharty, 636 F.2d 184
         (7th Cir. 1980); United States v. Kates, 419 F.Supp. 846
         (D.Pa. 1976); Upper West Fork River Watershed
         Association v. Corps of Engineers, United States Army,
         414 F.Supp. 908 (D.W.Va. 1976), affirmed 556 F.2d 576
         (4th Cir. 1977), cert. denied 434 U.S. 1010 (1978).  See
         also, Ite, Incorporated, supra, 88-1 BCA  20,269.  In
         that regard, in deciding whether a genuine issue exists,
         the court may not simply accept a party's statement that
         a fact is challenged.  See, Barmag Barmer
         Maschinenfabrik AG v. Murata Machinery, Ltd., 731 F.2d
         831, 835-36 (Fed. Cir. 1984) ("The party opposing the
         motion must point to an evidentiary conflict created on
         the record at least by a counter statement of a fact or
         facts set forth in detail in an affidavit by a
         knowledgeable affiant.").  Furthermore, mere
         protestations by the nonmoving party that material facts
         are in dispute have been held insufficient to defeat a
         motion for summary judgment.  R & D Associates, supra,
         86-3  19,062.  Cf., Central Mechanical Construction,
         ASBCA No. 29431, 86-3 BCA  19,160.  Accordingly, when
         all of these principles are considered, it becomes clear
         that the purpose of the summary judgment procedure is to
         cut through the pleadings and distinguish substantial
         issues from phantom issues raised only in the pleadings.
         See, Ite, Incorporated, supra, 88-1 BCA  20,269
         (citing, 6 J. MOORE, W. TAGGART & J. WICKER, MOORE'S
         FEDERAL PRACTICE  56.15(2), (2d ed. 1985)).


RBP Chemical Corporation, supra, Sl. op. at 17-18, 20-26.

   Unlike the situation in RBP Chemical Corporation, the Board
   must deal with motions for summary judgment from both parties
   in this case, instead of just one.  However, the applicable
   rules are no different.  As recently stated by the United
   States Court of Federal Claims in Bataco Industries, Inc.:

         Both plaintiff and defendant, as moving parties, have
         the burden of establishing that there are no genuine
         material issues in dispute and that, as movant, they are
         entitled to judgment as a matter of law.  [Citation
         omitted.]  In opposing the other's motion, each party
         has the burden of providing sufficient evidence, not
         necessarily admissible at trial, to show that a genuine
         issue of material fact indeed exits.  [Citation
         omitted.]  If the non-movant's evidence is merely
         colorable, or not sufficiently probative, summary
         judgment may be granted.  [Citations omitted.]

         In resolving cross-motions, the court may not weigh the
         evidence and determine the truth of the matter on
         summary judgment.  [Citation omitted.]  Any evidence
         presented by the opponent is to be believed and all
         justifiable inferences are to be drawn in its favor.
         [Citation omitted.]   with respect to any facts that may
         be considered as contested, each party, in its capacity
         as the opponent of summary judgment, is entitled to "all
         applicable presumptions, inferences and intendments."
         [Citation omitted.]

         That the parties, in their cross-motions, have
         separately alleged the absence of genuine issues of
         material fact, does not relieve the court of its
         responsibility to determine the appropriateness of
         summary disposition of the matter. . . . [T]he court
         must evaluate each party's motion on its own merits and
         drawing all reasonable inferences against the party
         whose motion is being considered.

Bataco Industries, Inc. v. United States, supra, 29 Fed.Cl. at
322.  See also, Baca v. United States, supra, 29 Fed.Cl. at
358-59.

   In order for the Board to grant either the Motion or the Cross
   Motion in this appeal, it would have to find that no genuine
   issues of material fact exist in either case.  That is, the
   Board would have to be able to conclude, on the one hand, that
   the default termination was justified, or on the other, that
   the Contracting Officer's action was completely invalid.
   However, when the above principles are applied in this
   proceeding, the Board finds that neither party has carried the
   day on its motion for summary judgment.

   A. Appellant's Motion

   From the outset, the Appellant has denied that its flight
   strips were defective, and thus there was nothing in the
   delivered product which needed to be cured;  i.e., this is not
   a case where the contractor admits the default but claims that
   it is excusable.  See, e.g., R.C. Swanson Printing and
   Typesetting Company, GPO BCA 31-90 (February 6, 1992), Sl. op.
   at 33-36, affirmed, Richard C. Swanson, T/A R.C. Swanson
   Printing and Typesetting Co. v. United States, Cl.Ct. No.
   92-128C (U.S. Claims Court, October 2, 1992);31 Chavis and
   Chavis Printing, supra, Sl. op. at 13; Jomar Enterprises,
   Inc., GPO BCA 13-86 (May 25, 1989), Sl. op. at 3-5.  Instead,
   the Appellant's principal defense in this case, and the basis
   for its Motion, is its claim that notwithstanding any defects
   which may have been found, the Government's failure to
   promptly inspect and accept or reject the flight strips, or to
   timely invoke the "Warranty" clause,  extinguishes any further
   obligations the Contractor might have had under the contract.

   The controlling principles of law relating to acceptance and
   warranties under Government contracts was recently set forth
   in an excellent opinion by the General Services Board of
   Contract Appeals (GSBCA) in ABM/Ansley Business Materials v.
   General Services Administration, GSBCA No. 9367, 93-1 BCA 
   25,246.  In that case, the GSBCA held that the Government's
   attempted use of the contract's "Warranty" clause to revoke
   its acceptance of adhesive note pads supplied under an
   estimated quantities contract was ineffective, because it was
   unable to prove the necessary elements of a warranty claim.
   In so ruling, the GSBCA stated, in pertinent part:

         . . . [A]cceptance, under the terms of the contract, is
         conclusive except in limited situations.  [Finding
         omitted.]  This provision has been construed to mean
         that the Government's acceptance of goods, even if
         nonconforming, is final, and that "the contractor has no
         further liability under the contract."  California Power
         Systems, Inc., GSBCA 7462, 86-1 BCA  18,598, at 93,367;
         see also, Zebra Corp., GSBCA 4723, 80-2 BCA  14.484, at
         71,392; Boston Pneumatics, Inc., GSBCA 3122, 72-2 BCA 
         9,692, at 45,211-12. . . . There are two contractual
         mechanisms by which the Government can avoid the
         conclusiveness of acceptance.  First, acceptance is not
         deemed conclusive in the face of a showing of a "latent
         defect, fraud, [or] gross mistake amounting to fraud."32
         FAR 52.246-2(k).  Second, the contract contains what
         amounts to warranty provision in the QAMA which also
         "overrides the conclusiveness of inspection and
         acceptance of goods by the Government."  Z.A.N. Co.,
         ASBCA 25488, 86-1 BCA  18,612 (1985). . . .

    * * * * * * * * * *

         To avoid the conclusiveness of acceptance through
         application of the warranty provision, respondent must
         meet its burden to show that the warranty applied.
         Camrex Reliance Paint Co., GSBCA 6166, 83-1 BCA 
         16,485, at 81,958; Joseph Penner, GSBCA 4647, 80-2 BCA 
         14,604, at 72,019.  To do so, it must prove the three
         elements of a warranty claim.  First, GSA must show that
         "furnishing the defective materials or workmanship was
         the responsibility of the contractor."  Joseph Penner,
         80-2 BCA at 72,019.  The Government need not be explicit
         on this score-it is sufficient for it to show "by a
         preponderance of he evidence, that defective material or
         workmanship was the most probable cause of the failure
         when considered with any other possible causes."  Id. .
         . . .

         Second, respondent must show that "the required notice
         was given within the time periods prescribed by the
         warranty clause."  Joseph Penner, 80-2 BCA at 72,019. .
         . .

         Finally, GSA must show that "it did not cause or
         contribute to the failures or defects."  Joseph Penner,
         80-2 BCA at 72,019.  Although the record gives us no
         particular reason to conclude that GSA in any way harmed
         the note pads, it is still GSA's burden to offer some
         proof that it did not.



ABM/Ansley Business Materials v. General Services Administration,
supra, 93-1 BCA  25,246, at 125,748-49.  See also, Globe
Corporation, ASBCA No. 45131, 93-3 BCA  25,968, at 129,141;
Pickett Enterprises, Inc., GSBCA Nos. 9472, 9890, 10051, 10102,
10426, 92-1 BCA  24,668, at 123,094; Air, Inc., supra, 91-1 BCA
 23,352, at 117,109-10.

   Applying the above principles in this proceeding, to prevail
   on its Motion the Appellant, as the moving party, would have
   to prove the negative of the three elements of a warranty
   claim.  FED.R. CIV.P. 56(c).  That is, the Contractor would
   have to show that: (1) if the flight strips were defective it
   was not responsible for the problem; (2) the Respondent did
   not give the required notice within the 120-day time period
   prescribed by the "Warranty" clause; and (3) the Government
   caused or contributed to the failure or defects in the flight
   strips; e.g., improperly adjusted FAA printers were either
   responsible for or contributed to the problems in running the
   forms.  See, RBP Chemical Corporation, supra, Sl. op. at 27.
   Furthermore, the Contractor would have to prove all the
   elements of its claim.  See, Globe Corporation, supra, 93-3
   BCA  25,968, at 129,141 (citing, Vi-Mil, Inc., ASBCA No.
   16820, 75-2 BCA  11,435, at 54,482).
   For the purpose of its Motion, the Appellant directs its
   arguments solely at element (2).  Hence, it was incumbent on
   the Appellant in this proceeding to offer evidence to the
   Board which would show not only that the flight strips had
   been accepted by the Government, but also that the acceptance
   was conclusive because the Respondent failed to assert its
   rights under the "Warranty" clause in time.  To meet its
   burden of proof, the Appellant draws primarily on the
   Respondent's admissions made during discovery,  see, Motion,
   p. 1, which it says establishes, inter alia, that: (1) the
   Contractor made a timely delivery of the flight strips under
   the contract; (2) the Government paid the contract price for
   the forms with two checks issued in December 1991; (3) the
   Government's receipt and retention of the flight strips, its
   tender of final payment, and the Contracting Officer's letter
   of February 14, 1991, informing the FAA that his inspection of
   the forms found nothing wrong with them and thus there was no
   contractual basis for requiring a reprint, constitutes implied
   acceptance of the flight strips; and (4) the Contracting
   Officer's letter of April 11, 1991, was not proper written
   notice under the "Warranty" clause, and therefore, the
   protection of that contract provision was not invoked by the
   Respondent within the prescribed 120 days.  In the Board's
   view, this evidence is insufficient to carry the Appellant's
   burden.  First, acceptance of supplies cannot always be
   imputed from the simple act of paying for them.  See, Pickett
   Enterprises, Inc., supra, 92-1 BCA  24,668, at 123,094;
   Spectrum Leasing Corporation, GSBCA Nos. 7347, 7379, 7425-27,
   7571, 90-3 BCA  22,984.  Second, admissions against interest
   are not always conclusive proof of an issue, but may only
   raise a rebuttable presumption subject to additional evidence,
   especially where, as here, the author of the admission
   attempts to explain adverse statements made during discovery
   in a subsequent affidavit submitted in opposition to a motion
   for summary judgment.  See, Blake Construction Company, Inc.,
   ASBCA No. 36307, 90-2 BCA  22,889, at 114,941; Universal
   Canvas, Inc., ASBCA No. 36141, 89-1 BCA  21,522, at 108,393.
   Accord, Lindsey Logging/Brush Piling, AGBCA Nos. 90-144-,
   90-215-1, 91-2 BCA  23,671; Thompson Entomological and Tree
   Service, ASBCA No. 34518, 89-1 BCA  21,267.

   The Respondent, on the other hand, has done all that is
   required of it under the Federal procedural rules to oppose
   the Motion.  In particular, it has pointed to an evidentiary
   conflict created on the record both by presenting its own
   counter statement of facts and arguments, set forth in detail,
   and by supporting them with a signed statement from the
   Contracting Officer.  See, RBP Chemical Corporation, supra,
   Sl. op. at 28 (citing, Barmag Barmer Maschinenfabrik AG v.
   Murata Machinery, Ltd., supra, 731 F.2d at 836).  See also,
   W.B. Huckabay Associates, Western Offshore Group, Inc., ASBCA
   No. 44138, 93-2 BCA  25,676 (affidavit from nonmoving party-
   summary judgment denied); Erie Tool Works, ASBCA Nos. 34811,
   34881, 89-1 BCA  21,316 (affidavit from nonmoving party-
   summary judgment denied).  But cf., Mourning V. Family
   Publishing Service, Inc., 411 U.S. 356, 362, fn. 16 (1973)
   (summary judgment proper because respondent failed to
   controvert prior admissions by affidavit); Snack Time Foods,
   Inc. (dba Snack Time Vending), VABCA No. 3729, 93-2 BCA 
   25,825 (no affidavit from nonmoving party-summary judgment
   granted).  First, the Respondent disputes the Appellant's
   contention that the Government accepted the flight strips
   simply by paying for them, on the ground that under GPO
   contracts payment to the contractor only constitutes evidence
   of delivery, not acceptance.  GPO Contract Terms, Contract
   Clauses, Art. 24.  See, Res. Opp., p. 4, fn. 2; Wildbrett
   Declaration,  11.  Second, and perhaps more importantly, the
   Respondent argues that even if acceptance had taken place, it
   was timely revoked by the Contracting Officer's letter of
   April 11, 1991 (R4 File, Tab F).  See, Res. Opp., pp. 5-6;
   Wildbrett Declaration,  4.  In that regard, the Respondent
   contends that the Contracting Officer's letter was sufficient
   to place the Appellant on notice of the defects with the
   flight strips and to assert the Government's rights under the
   "Warranty" clause because it informed the Contractor that: (1)
   the FAA had complained about defects in the flight strips; (2)
   the forms were being inspected; and (3) the test results would
   soon be known.  In the Respondent's view, this information was
   enough to inform the Appellant that the flight strips were
   defective with respect to "material or workmanship" and that
   the forms did not comply with the contract specifications.
   Indeed, the Contracting Officer expressly states that his
   letter was intended to "place Vanier on notice of the defects
   . . . , and advise them that additional inspections would be
   undertaken."  See, , Wildbrett Declaration,  4.  Since the
   Contracting Officer's letter was sent to the Appellant within
   the 120-day warranty period, the Respondent is satisfied that
   the Government's rights were timely preserved.

   Whether the Respondent's confidence about the Contracting
   Officer's letter of April 11, 1991, is justified will have to
   await a hearing in this matter.  Suffice it to say, however,
   the
Contracting Officer's affidavit is sufficient, in the Board's
view, to raise a question about what he meant to say and what he
actually said in that letter, and thus establish a genuine issue
of a material fact.  In that regard, this situation is analogous
to the one faced by the Armed Services Board of Contract Appeals
(ASBCA) in Universal Canvas, Inc., supra, where, as here, a
contractor filed a motion for partial summary judgment, and the
contracting officer whose decision was challenged, submitted an
affidavit in opposition to the motion which raised an issue as to
the meaning of the language in his decision.  In denying the
contractor's motion, the ASBCA opined:

         . . . [W]e are once again presented with an author's
         affidavit attempting to explain unusual language, . . .

         Should the parties fail to settle this case and a
         hearing be held, we can expect interesting cross
         examination of the ACO and the contracting officer
         regarding their use of language to manifest their
         intent.  However, at the present time it is clear that
         there are genuine issues of material fact which must be
         adjudicated before we can issue a decision.

Universal Canvas, Inc., supra, 89-1 BCA  21,522, at 108,393.
The Board could not agree more with the sentiments expressed by
the ASBCA.

   Because the two central issues raised by the Motion-whether or
   not the Government actually accepted the flight strips in the
   first instance, and if not, whether or not its attempt to
   revoke that acceptance by means of the contract's "Warranty"
   clause was untimely-are in dispute, and the controversy is
   clearly genuine, this appeal is inappropriate for summary
   judgment on that basis alone.  See, e.g., The Electronic
   Genie, Inc., ASBCA Nos. 40535,41684, 41688, 91-2 BCA  23,713;
   Infotec Development, Inc., ASBCA No. 31809, 88-2 BCA  20,737;
   Gemo Construction Corporation, PSBCA No. 2343, 89-1 BCA 
   21,293.  Accordingly, the Motion is DENIED.33
     B. Respondent's Cross Motion

   By denying the Appellant's Motion, the Board is not compelled
   to grant the Respondent's Cross Motion.  It is well-settled
   that:  "[t]he fact that both parties have moved for summary
   judgment does not meant that the [Board] must grant judgment
   as a matter of law for one side or the other; summary judgment
   in favor of either party is not proper if disputes remain as
   to material facts."  See, Harris Corporation, ASBCA No. 37940,
   89-3 BCA  22,145, at 111,462 (citing, Mingus Constructors,
   Inc. v. United States, supra, 812 F.2d at 1391).  See also,
   Bataco Industries, Inc. v. United States, supra, 29 Fed.Cl. at
   322 ("Nor does the fact that inherently contradictory claims
   are being presented mean that if one is rejected, the other
   must be justified and therefore granted."  Citing, Rains v.
   Cascade Industries, Inc., 402 F.2d 241, 245 (3d Cir. 1968)).

   This case is before the Board because the Contracting Officer,
   after months of negotiating with the Appellant over a
   resolution to the flight strip problem, partially defaulted
   the contract.  It is axiomatic that a default termination is a
   drastic action which may only be taken for good cause and on
   the basis of solid evidence.  See, Hurt's Printing Company,
   Inc., supra, Sl. op. at 13-14; Shepard (1993), supra, Sl. Op.
   at 10; Stephenson, Inc., supra, Sl. op. at 19-20.
   Furthermore, the burden of proving the basis for the default
   is on the Government.  See, Chavis and Chavis Printing, supra,
   Sl. op. at 11 (and cases cited therein); Shepard (1993),
   supra, Sl. Op. at 11; R.C. Swanson Printing and Typesetting
   Company, supra, Sl. op. at 28.  Accord, Lisbon Contractors v.
   United States, 828 F.2d 759 (Fed. Cir. 1987).  The contractor
   has the burden of proving that the default was excusable.
   See, Chavis and Chavis Printing, supra, Sl. op. at 11-12;
   Shepard (1993), supra, Sl. Op. at 11.  Accord, Switlik
   Parachute Company v. United States, 216 Ct.Cl. 362 (1978);
   J.F. Whalen and Company, AGBCA Nos. 83-160-1, 83-281-1, 88-3
   BCA  21,066.

   Under the "Default" clause in GPO contracts, the Contracting
   Officer can, among other things, on written notice of default
   to the contractor, terminate a contract, in whole or in part,
   if the contractor fails to "[d]eliver the supplies or to
   perform the services within the time specified or any
   extension, thereof; . . .".  GPO Contract Terms, Contract
   Clauses, Art. 20(a)(1)(i).  This provision not only applies to
   late deliveries of supplies, see, Chavis and Chavis Printing,
   supra, Sl. op. at 12-15; Jomar Enterprises, Inc., supra, Sl.
   op. at 3-5, but also to the timely delivery of nonconforming
   products.34  See, Shepard (1993), supra, Sl. op. at 19-23;
   B.P. Printing and Office Supplies, GPO BCA 22-91 (February 5,
   1993), Sl. op. at 24; Stephenson, Inc., supra, Sl. op. at
   18-19.  Accord, Kopier Produckte, ASBCA No. 29471, 85-3 BCA 
   18,367; Meyer Labs, Inc., ASBCA No. 18347, 77-1 BCA  12,539.

   In this case, the Contracting Officer terminated the
   Appellant's contract for default because, in his view, the
   flight strips produced and delivered by the Contractor did not
   comply with the contract specifications (R4 File, Tab N).
   However, the Respondent does not pursue a summary ruling on
   that ground.  Instead, the Cross Motion urges the Board to
   enter judgment for the Respondent on the theory, well
   supported in the case law, that the Contractor's refusal to
   carry out the Contracting Officer's direction to reprint the
   flight strips (R4 File, Tab M), constitutes a separate and
   valid ground for default without regard to the merits of the
   underlying dispute.  Cross Motion, p. 3-4.

   The essence of the so-called "continued performance" doctrine
   is that a contractor's failure to comply with a Contracting
   Officer's instructions during the pendency of a dispute
   constitutes abandonment or a repudiation of the contract.35
   Sterling Printing, Inc., supra, Sl. op. at 37-38 (citing,
   Altina Trucking, PSBCA No. 3341, 93-3 BCA  26,256.  Accord,
   Twigg Corporation, NASA BCA No. 62-0192, 93-1 BCA  25,318; F
   & D Construction Company, Inc., ASBCA No. 41441, 91-2 BCA 
   23,983; A. N. Xepapas, AIA, VABCA No. 3087, 91-2 BCA  23,799;
   Holt Roofing Company, Inc., GSBCA No. 8270, 91-1 BCA  23,361;
   Kirk Casavan, AGBCA No. 76-192, 78-2 BCA  13,459).  In
   Sterling Printing, Inc., a recent decision, the Board, sua
   sponte, sustained the default termination of a contract on the
   very ground asserted by the Respondent in this case.  In so
   ruling, the Board described the parameters of the rule,
   stating, in pertinent part:

            In order to sustain a ["continued performance']
            default . . . two things are required: (1) a clear
            direction by the contracting officer; and (2) a
            refusal by the contractor to proceed with
            performance.  See, Ascani Construction & Realty
            Company, VABCA Nos. 1572, 1584, 83-2 BCA  16,635.
            See also, Max M. Stoeckert v. United States, 183
            Ct.Cl. 152, 391 F.2d 639 (1968); James W. Sprayberry
            Construction, IBCA No. 2130, 87-1 BCA  19,645; G.W.
            Galloway Company, ASBCA No. 17436, 77-2 BCA  12,640;
            Pacific Devices, Inc., ASBCA No. 19379, 76-2 BCA 
            12,179. . . .  As the Veterans Administration Board
            of Contract Appeals explained when it affirmed a
            contracting officer's default termination decision on
            anticipatory repudiation grounds:

            [T]he existence of a dispute regarding contract
            specifications does not excuse a refusal to perform.
            Charles Bainbridge, Inc., ASBCA Nos. 15843, 16204,
            72-1 BCA  9,351.  The fact that the parties are
            involved in a contract dispute does not justify
            abandonment of the contract.  Nasco Products Company,
            VACAB Nos. 974, 1000, 72-2 BCA  9,556.

   * * * * * * * * * *
         A. N. Xepapas, AIA, supra, 91-2 BCA  23,799, at
         119,178-79 (quoting, Eriez Construction, Inc., supra,
         78-2 BCA  13,547 at 66,363).  See also, Computer
         Engineering Associates, VABCA No. 1596, 84-2  17,246.

         To support a default termination on the basis of
         anticipatory repudiation by the contractor, the trier of
         fact must find:

            a "positive, definite, unconditional, and unequivocal
            manifestation of intent . . .  on the part of the
            contractor . . . not to render the promised
            performance . . . "

         United States v. DeKonty Corporation, 922 F.2d 826, 828
         (Fed. Cir. 1991) (citing, Cascade Pacific International
         v. United States, supra, 773 F.2d at 293).  See also,
         James B. Beard, D.O., supra, 93-3 BCA  25,976, at
         129,171; Altina Trucking, supra, 93-3 BCA  26,256, at
         130,590-91.  The Government has the burden of proving
         that the contractor communicated an intent not to
         perform in a positive, definite, unconditional and
         unequivocal manner.  James B. Beard, D.O., supra, 93-3
         BCA  25,976, at 129,171 (citing, United States v.
         DeKonty Corporation, 922 F.2d 826).  See also, Sealtite
         Corporation, GSBCA Nos. 7458, 7633, 88-3 BCA  21,084,
         at 106,452.  That burden is usually met by showing: (1)
         a definite and unequivocal statement by the contractor
         that he/she refused to perform; or (2) actions which
         constitute actual abandonment of performance.  See, Holt
         Roofing Company, Inc., supra, 91-1 BCA  23,361  (a
         contractor unequivocally repudiated a construction
         contract when its principal arrived on the jobsite,
         ordered the subcontractor to stop work, and stated he
         hoped that the Government would terminate the contract
         so that he could resume a normal life).  See also,
         Professional Building Services and Maintenance, ASBCA
         No. 42480, 91-3 BCA  24,360.  The contractor, on the
         other hand, has the burden of proving that its
         abandonment was excusable within the meaning of the
         "Default" clause or was caused by the Government's
         material breach of the contract.  F & D Construction
         Company, Inc. and D&D Management, Consulting and
         Construction Company, Inc., ASBCA Nos. 41441-44, 91-2
         BCA  23,983). . . .

   * * * * * * * * * *

         Finally, an anticipatory repudiation also occurs when a
         contractor fails to proceed as directed pending
         resolution of its dispute with the Government.  Twigg
         Corporation, supra, 93-1 BCA  25,318, at 126,157.  See
         also, A. N. Xepapas, AIA, supra, 91-2 BCA  23,799, at
         119,179. . . . This Board, as well as the ad hoc appeals
         panels which preceded it, have held on numerous
         occasions that under the GPO "Disputes" clause, a
         contractor is obligated to follow the contracting
         officer's directives regardless of the merits of the
         controversy.  See, e.g., International Lithographing,
         GPO BCA 1-88 (December 29, 1989); Colorgraphics
         Corporation, GPO BCA 16-87 (March 31, 1989); Custom
         Printing Company, GPO BCA 10-87 (May 10, 1988).  See
         also, e.g., Knepper Press, GPOCAB Nos. 2-84 and 3-84
         (October 2, 1984); Business Forms Service, Inc., GPOCAB
         9-81 (October 20, 1981); Merchant Service Company, GPO
         Contract Nos. 373 and 374 [No GPOCAB Docket Number]
         (February 11, 1980).36

Sterling Printing, Inc., supra, Sl. op. at 37-40, 44-45.

   Assuming that the Contracting Officer's directions to reprint
   the rejected flight strips were timely, in order to prevail on
   its Cross Motion the Respondent, as the moving party, would
   have to prove both elements of its "continued performance"
   claim.  FED.R. CIV.P. 56(c).  That is, the Government would
   have to show that: (1) the Contracting Officer gave a clear
   instructions to the Appellant to that effect; and (2) the
   Contractor refused to reprint the forms, as directed.
   Sterling Printing, Inc., supra, Sl. op. at 37.  However, the
   mere fact that the Appellant failed to reprint the flight
   strips will not suffice, i.e., there must be a "positive,
   definite, unconditional, and unequivocal manifestation of
   intent . . .  on the part of the contractor . . . not to
   render the promised performance."  Id., Sl. op. at 39; United
   States v. DeKonty Corporation, supra, 922 F.2d at 828; Cascade
   Pacific International v. United States, supra, 773 F.2d at
   293.

   The key to the Respondent's case is the Contracting Officer's
   letter of August 13, 1991, which gave the Appellant clear
   instructions to "reprint the remaining rejected 221,760,000
   flight strips" (R4 File, Tab M, p. 2).  Cross Motion, p. 4.
   Furthermore, it is undisputed that the Contractor did not
   reprint the forms, as directed by the Contracting Officer, but
   instead questioned the findings that the flight strips were
   defective, participated in several meetings and discussions
   with GPO and the FAA, and exchanged proposals in an effort to
   resolve the problem.  However, under the law, and contrary to
   the Respondent's belief, see, Cross Motion, p. 8, the fact
   that the Appellant did not replace the rejected flight strips
   does not, in and of itself, furnish the necessary proof for
   the second element of the "continued performance" doctrine.
   What is missing from the Government's case is the "positive,
   definite, unconditional, and unequivocal manifestation of
   intent . . .  on the part of the contractor . . . not to
   render the promised performance."  Compare, Sterling Printing,
   Inc., supra, Sl. op. at 39, 42-45 (evidence of a positive,
   unconditional, and unequivocal manifestation of intent to
   abandon the contract), with Shepard (1993), supra, Sl. op. at
   9, fn. 12 (no evidence of a positive, unconditional, and
   unequivocal manifestation of intent to abandon the contract).

   The Appellant, on the other hand, has done all that is
   required of it under the Federal Rules to oppose the Cross
   Motion.  Specifically, it has pointed to an evidentiary
   conflict created on the record both by presenting its own
   counter statement of facts and arguments, set forth in detail,
   and by supporting them with an affidavit from its attorney and
   primary representative, a knowledgeable affiant.   See, RBP
   Chemical Corporation, supra, Sl. op. at 28 (citing, Barmag
   Barmer Maschinenfabrik AG v. Murata Machinery, Ltd., supra,
   731 F.2d at 836).  See also, W.B. Huckabay Associates, Western
   Offshore Group, Inc., supra, 93-2 BCA  25,676; Erie Tool
   Works, supra, 89-1 BCA  21,316.  With particular regard to
   the Respondent's contention that Contractor failed to comply
   with the Contracting Officer's direction to reprint the
   defective flight strips, the Appellant expressly denies it.
   App. Opp., Horne Affidavit,  2.  Furthermore, the Contractor
   tells us that throughout this period, up to and past the day
   of default, the parties continued their discussions about a
   possible equitable resolution of the dispute, and in fact, the
   Contracting Officer himself kept changing the reprint
   deadlines.  App. Opp., p. 11; Horne Affidavit,  2-4.  As
   indicated above, the burden of proving that the contractor
   communicated an intent not to perform in a positive, definite,
   unconditional and unequivocal manner, either through definite
   and unequivocal statements by the contractor that he/she
   refused to perform, or actions which constituted actual
   abandonment of performance, is on the Government.  See,
   Sterling Printing, Inc., supra, Sl. op. at 39; James B. Beard,
   D.O., supra, 93-3 BCA  25,976, at 129,171; Holt Roofing
   Company, Inc., supra, 91-1 BCA  23,361.  When the Board
   considers the Appellant's evidence, especially the statement
   from its principal representative denying that the Contractor
   refused to comply with any directions received from the
   Contracting Officer, it must conclude that the Respondent has
   failed to carry its burden of proof.  See, RBP Chemical
   Corporation, supra, Sl. op. at 27.  Accordingly, the Cross
   Motion is DENIED.

   V. CONCLUSION

   On the Motion and the Cross Motion, the Appellant and the
   Respondent, respectively, had to show that as to matters
   within their own burden of proof there were no genuine issues
   of fact.  Baca v. United States, supra, 29 Fed.Cl. at 358-59;
   Bataco Industries, Inc. v. United States, supra, 29 Fed.Cl. at
   322.  However, it is clear to the Board that numerous facts
   material to the resolution of the issues in this case remain
   in dispute.37  As the record currently stands, the Board would
   be required to review the conflicting assertions and evidence
   presented by both parties and make factual determinations
   based on that review in order to decide whether either party
   is entitled to judgment as a matter of law.38  It is
   inappropriate to make such factual determinations in a summary
   judgment proceeding.  See, RBP Chemical Corporation, supra,
   Sl. op. at 30 (citing, Oak Cliff Realty, Inc., VABCA No. 3232,
   91-1 BCA  23,481).  See also, Anderson v. Liberty Lobby,
   Inc., supra, 477 U.S. at 249, 255; Bataco Industries, Inc. v.
   United States, supra, 29 Fed.Cl. at 322; Bromion, Inc., ASBCA
   No. 37124, 89-1 BCA  21,424. Accordingly, it is the opinion
   of the Board that neither party has carried its burden in this
   proceeding of showing that there are no genuine issues of
   material fact in dispute.

   VI. ORDER

   For all the foregoing reasons, the Appellant's Motion and the
   Respondent's Cross Motion are DENIED.  Accordingly, the Board
   will schedule an evidentiary hearing in this appeal.  Board
   Rules, Rules 17 through 25.  However, during the telephone
   status conference on Tuesday, May 17, 1994, the parties, when
   informed of this DECISION ON MOTIONS AND ORDER by the Board,
   indicated that additional discovery is required. Board Rules,
   Rules 14 and 15.  Therefore, in accordance with the
   arrangements agreed to by the parties and the Board at that
   meeting, the parties are directed to develop a mutually
   acceptable discovery plan and present it to the Board for its
   approval no later than Thursday, June 30, 1994.  While the
   parties have until that date to develop and present their plan
   to the Board, they are encouraged to do so sooner, if at all
   possible.  Board Rules, Preface to Rules,  III.A.  Upon
   notification that discovery is complete, the Board will
   consult with the parties by telephone, and arrange the date,
   time and place for a hearing in this case.  Board Rules, Rule
   17.

It is so Ordered.

May 17, 1994               STUART M. FOSS
                        Administrative Judge
_______________

    1 The Contracting Officer's appeal file, assembled pursuant
    to Rule 4 of the Board's Rules of Practice and Procedure, was
    delivered to the Board on April 23, 1992.  GPO Instruction
    110.12, Subject: Board of Contract Appeals Rules of Practice
    and Procedure, dated September 17, 1984, Rule 4 (Board
    Rules).  The file consists of 23 documents, labeled Tabs A
    through W, inclusive.  The file will be referred to hereafter
    as R4 File, with an appropriate Tab letter also indicated.
    2 The Board's Report of a Telephone Status Conference, dated
    February 14, 1994, incorrectly shows the date of the second
    telephone status conference as February 8, 1993.  Report of
    Telephone Status Conference, dated February 14, 1994, p. 1
    (RTSC-2).  The year indicated is an obvious typographical
    error.
    3 The filing schedule established during the second telephone
    status conference required the Appellant's and Respondent's
    motions to be submitted on February 18, 1994, and March 10,
    1994, respectively.  RTSC-2, p. 4.  However, the Appellant
    subsequently asked for an extension of time of one week to
    file its motion, which was granted without objection, and the
    Board made the appropriate adjustments in the schedule
    accordingly.  Order Granting an Extension of Time to File
    Motion for Summary Judgment, dated February 18, 1994, p. 2.
    See, Board Rules, Preface to Rules,  III.C.
    4 The original filing schedule required the Respondent's
    opposition and the Appellant's opposition to be filed on
    February 28, 1994, and March 21, 1994, respectively.  RTSC-2,
    p. 4.  When the Board granted the Appellant's request for an
    extension of time to file a motion for summary judgment, it
    also made the appropriate changes in the dates for the
    parties to submit their oppositions; i.e., March 7, 1994 and
    March 28, 1994, respectively.  See, note 3 supra.  Order
    Granting an Extension of Time to File Motion for Summary
    Judgment, dated February 18, 1994, p. 2.  The Respondent
    filed its opposition in accordance with the revised schedule
    on March 7, 1994.  The Appellant did not file its opposition
    on March 28, 1994, as scheduled.  However, on April 7, 1994,
    the Appellant requested additional time from March 28, 1994,
    to April 12, 1994, to submit its opposition to the
    Respondent's cross motion for summary judgment, which was
    granted in the absence of an objection.  See, Order Extending
    Time for Appellant to File a Response to Respondent's Motion
    for Summary Judgment, dated April 18, 1994, pp. 2, 3.  See,
    Board Rules, Preface to Rules,  III.C.
    5 The factual description of this case is based on the R4
    File, the Board's Report of A Prehearing Telephone
    Conference, dated July 7, 1993 (RPTC), the Respondent's
    Responses to Appellant's First Request for Admissions, dated
    January 21, 1994 (Res. R.), and the Appellant's Answers and
    Objections to Respondent's First Set of Interrogatories and
    Request for Production of Documents, dated February 22, 1994
    (App. A.).  The facts surrounding this controversy are
    recited here only to the extent necessary to dispose of the
    Motion and Cross Motion.
    6 These flight strips were marginally punched continuous
    forms used by the FAA for air traffic control purposes (R4
    File, Tab A, p. 1).  Accordingly, they had to have consistent
    dimensions, especially for depth and thickness, in order to
    function properly when processed through the FAA's data
    printers (R4 File, Tab A, p. 1).
    7 GPO Contract Terms, Solicitation Provisions, Supplemental
    Specifications, and Contract Clauses, GPO Publication 310.2,
    Effective December 1, 1987 (Rev. 9-88) (GPO Contract Terms).
    8 The reference in the IFB to the September 1, 1980, version
    of GPO Contract Terms, is clearly a typographical error.  At
    the time of the solicitation and award of the disputed
    contract, the revised September 1988 edition of GPO Contract
    Terms was in effect.  See, note 7 supra.  Indeed, the IFB's
    specifications later refer to "GPO Contract Terms, dated
    September 1, 1988."  See, R4 File, Tab A, p. 7 (Schedule).
    As indicated in the specification, Article 14 of the 1988 GPO
    Contract Terms is entitled "Inspection and Tests".  GPO
    Contract Terms, Contract Clauses, Art. 14.  On the other
    hand, in the two prior versions of GPO Contract Terms-1979
    and 1980-the "Inspection and Tests" provisions are found in
    Articles 12 and 2-12, respectively.  See, GPO Contract Terms
    No. 1 (Revised), GPO Publication 310.2, August 1, 1979,
    General Provisions, Art. 12; GPO Contract Terms No. 1, GPO
    Publication 310.2, Revised October 1, 1980, General
    Provisions, Art. 2-12.
    9 The Contractor states that it did not knowingly supply
    prior-to-production samples or the final product which did
    not conform to the specifications.  App. A.,  17, 18.  In
    this regard, it should be remembered that an essential
    element of the so-called "substantial compliance" rule is
    that the contractor must reasonably believe, in good faith,
    that the delivered supplies conformed to the contract when
    shipped and that they would be acceptable.  See, McDonald &
    Eudy Printers, Inc., GPO BCA 06-91 (May 6, 1994), Sl. op. at
    18, fn. 16 (citing, Radiation Technology, Inc. v. United
    States, 177 Ct.Cl. 227, 232, 366 F.2d 1003, 1006 (1966));
    Sterling Printing, Inc., GPO BCA 20-89 (March 28, 1994), Sl.
    op. at 35, fn. 48; Hurt's Printing Company, Inc., GPO BCA
    27-92 (January 21, 1994), Sl. op. at 17; Shepard Printing,
    GPO BCA 23-92 (April 29, 1993), Sl. op. at 19-20 (hereinafter
    Shepard (1993)).  The Appellant also says that before running
    the prior-to-production samples the Appellant noticed that
    the contract specifications had a reduced tolerance for
    registration of printed lines compared to flight strips
    produced under previous contracts, so it conducted frequent
    quality control checks during production of all samples and
    the final product.  App. A.,  16(a),(b).  Furthermore, the
    Appellant used the same methods and equipment to produce all
    flight strip quality control samples.  App. A.,  16(c).
    10 There were 8 exhibits attached to the Respondent's
    Responses to Appellant's First Requests for Admissions.  They
    are cited in this opinion as "App. Exh. No.", with an
    appropriate number thereafter.
    11 As specified in the "Quality Assurance" provisions of the
    contract, the FAA was the authorized to conduct the
    acceptance inspections of the flight strips at the delivery
    destination.  See, R4 File, Tab A, p. 5.  Both GPO and the
    FAA contend the acceptance inspections were conducted in
    accordance with MIL-STD-105D.  See, RPTC, p. 3, fn. 2.
    12 During these discussions, the Respondent stated that its
    "initial inspection" confirmed FAA's complaint of
    misalignment between the left and right pinfeed holes, and a
    problem with the 1/4" spacing between the bottom rule and the
    perforation (R4 File, Tab H).  RPTC, p. 3.
    13 In the context of discovery, the Respondent made several
    admissions concerning its attempts to reprocure approximately
    200,000,000 flight strips from Elgin Business Forms, Inc.
    (Elgin), under Jacket No. 663-505.  Res. R.,  48-56.  Those
    admissions are not relevant to these summary proceedings.
    However, according to the Respondent, Elgin was also unable
    to produce conforming flight strips.  Res. R.,  54-56.
    When that fact is considered in light of the Respondent's
    admission that several changes were made to the contract
    specifications, including the "specification drawing", in its
    successful repurchase of the Elgin contract under Jacket No.
    662-267, Res. R.,  71-72, the Board wonders if there may be
    an issue in this appeal concerning whether or not the flight
    strip specifications in the Appellant's contract may have
    been defective.  Cf., Printing Unlimited, GPO BCA 21-90
    (November 30, 1993), Sl. Op. at 17-18, 21-22; Graphics Image,
    Inc., GPO BCA 13-92 (August 31, 1992), Sl. op. at 20-21.
    14 The Board was created by the Public Printer in 1984.  GPO
    Instruction 110.10C, Subject: Establishment of the Board of
    Contract Appeals, dated September 17, 1984 (hereinafter GPO
    Instruction 110.10C).  Prior to that time, appeals from
    decisions of GPO Contracting Officers were considered by ad
    hoc panels of its predecessor, the GPO Contract Appeals Board
    (GPOCAB).  The Board has consistently taken the position that
    it is a different entity from the GPOCAB.  See, e.g.,
    McDonald & Eudy Printers, Inc., supra, Sl. op. at 15, fn. 11;
    Sterling Printing, Inc., supra, Sl. op. 29, fn. 40; Shepard
    Printing, GPO BCA 37-92 (January 28, 1994), Sl. op. at 11,
    fn. 10; The Wessel Company, Inc., GPO BCA 8-90 (February 28,
    1992), Sl. op. at 25, fn. 25.  Nonetheless, it has also been
    the Board's policy to follow the holdings of the ad hoc
    panels where applicable and appropriate, but the Board
    differentiates between its decisions and the opinions of
    those panels by citing the latter as GPOCAB.  See, e.g.,
    Stephenson, Inc., GPO BCA 02-88 (December 20, 1991), Sl. op.
    at 18, fn. 20; Chavis and Chavis Printing, GPO BCA 20-90
    (February 6, 1991), Sl. op. at 9, fn. 9.
    15 As indicated by the Respondent, the warranty period
    expired on April 20, 1991.  See, Res. Opp., p. 5, fn. 3.
    16 The Appellant also states that the Contracting Officer's
    letter of April 11, 1991, did not "assert that GPO believed
    the [f]light [s]trips were defective, . . .".  Motion, p. 7.
    In that regard, the Board has observed, on numerous
    occasions, that the Respondent's Printing Procurement
    Regulation, expressly states that the only person authorized
    to make final determinations on whether products shipped by a
    contractor conform to contract specifications is the
    Contracting Officer.  See, Printing Procurement Regulation,
    GPO Publication 305.3 (September 1, 1988), Chap. XIII, Sec.
    1,  4.f. (PPR).  See also, e.g., McDonald & Eudy Printers,
    Inc., supra, Sl. op. at 22, fn. 17; Sterling Printing, Inc.,
    supra, Sl. op. at 34-35, fn. 46; Hurt's Printing Company,
    Inc., supra, Sl. op. at 10, fn. 13.  Indeed, the general view
    is that the Contracting Officer's discretion to decide
    whether a product is conforming or nonconforming is inherent
    in his/her administration of the contract.  Sterling
    Printing, Inc., supra, Sl. op. at 34-35, fn. 46 (citing,
    Vogard Printing Corporation, GPOCAB 7-84 (January 7, 1986),
    Sl. op. at 6; Thomas W. Yoder Company, Inc., VACAB No. 997,
    74-1 BCA  10,424).
    17 The Appellant's proposed remedy is to convert GPO's
    default termination of the contract into a termination for
    convenience.  Motion, p. 8.  The Contractor misconceives the
    nature of the remedy in this case if the Board was to find
    that the default termination was unjustified.  The general
    rule that the Government's failure to sustain its default
    action results in treating the parties as if a termination
    for convenience had taken place, is expressly stated in the
    "Default" clause of the contract.  See, GPO Contract Terms,
    Contract Clauses, Art. 20(g).  However, by its terms the
    "Default" clause, and hence the rule, deals with contracts
    where all or some measure of performance is still expected
    from the contractor.  See, e.g., Graphics Image, Inc., supra,
    Sl. op. at 28; Pennsylvania Printed Products Company, Inc.,
    GPO BCA 29-87 (January 22, 1990), Sl. op. at 14, mot. for
    reconsid. denied, GPO BCA 29-87 (June 7, 1990); American
    Drafting & Laminating Company, GPO BCA 6-85 (April 15, 1986),
    Sl. op. at 17;  General Business Forms, Inc., GPO BCA 2-84
    (December 3, 1985), Sl. op. at 23.  Accord, Brandywine
    Prosthetic-Orthotic Services, Ltd., VABCA No. 3441, 93-1 BCA
     25,250.  Indeed, in Industrionics, Inc., a case cited by
    the Appellant, the ad hoc panel noted that: "The right to
    terminate for default is limited to the executory or
    unfinished portion of a contract.  Acceptance of supplies
    bars a default termination on that work that was accepted."
    Industrionics, Inc., supra, Sl. op. at 6 (citing, K Square
    Corporation, IBCA No. 959-3-72, 73-2 BCA  10,363; Astubeco,
    Inc., ASBCA No. 8727, 1963 BCA  3,941).  In this case, a
    finding that the Appellant's flight strips had been accepted
    by the Government would mean that the entire contract was
    fully performed and paid for.  Thus, overruling the
    Contracting Officer would simply nullify his act, and leave
    the parties in the exactly the same position they were before
    the dispute arose.  Cf., Folk Construction Company, Inc., ENG
    BCA Nos. 5839, 5899, 93-3 BCA  26,094, at 129,732 ("When the
    Government improperly or ineffectively terminates an ongoing
    contract for default, usually the appropriate remedy is to
    convert this action into a termination for the convenience of
    the Government.  However, in this case, the Government
    attempted to terminate the right to proceed for default where
    the work had already ended by mutual agreement, . . . .  As
    such, the implications and rights attendant to a termination
    for default valid or invalid do not attach here, because the
    Government no longer possessed the power to terminate
    Appellant's right to proceed; that power lapsed when the
    parties agreed that the contract was complete.  Since the
    termination action is in itself a nullity, the traditional
    remedy of conversion does not lie."  [Original emphasis.]).
    Also cf., Lionsgate Corporation, ENG BCA No. 5809. 92-2 BCA 
    24,983; Gilbert W. Savage, A.I.A., ASBCA No. 11090, 66-2 BCA
     5,832.
    18 The Respondent recognizes that one of the Appellant's
    principal arguments is that GPO's payment for the flight
    strips is evidence that they were accepted.  Res. Opp., p. 4,
    fn. 2.  The Respondent believes that even if that was the
    general rule (citing, FAR 52-232-1), the "unique nature" of
    GPO contracts makes the principle inapplicable here because
    GPO contractor's are paid prior to inspection, simply on
    proof of delivery (citing, GPO Contract Terms, Contract
    Clauses, Art. 24).  See, Res. Opp., Attachment, Declaration
    of Richard W. Wildbrett,  11 (Wildbrett Declaration).
    Consequently, payment and acceptance do not necessarily go
    "hand-in-hand" where GPO contracts are concerned.  Res. Opp.,
    p. 4, fn. 2.  In any event, the Respondent contends that the
    presence of the "Warranty" clause makes it unnecessary to
    reach the question of whether the flight strips were
    accepted, especially since the clause allows an agency to
    revoke any previous acceptance.  Id. (citing, Air, Inc.,
    GSBCA No. 8847, 91-1 BCA  23,352, at 117,111; Goal Chemical
    Sealants Corporation, GSBCA Nos. 8627, 8628, 88-3 BCA 
    21,083, at 106,447).
    19 As the Respondent notes, one purpose of warranty clauses
    is to exempt the Government from the necessity of exercising
    extreme diligence in its inspections.  Res. Opp., p. 4
    (citing, Market Equipment Ltd., ASBCA No. 9639, 65-1 BCA 
    4,608).
    20 The Respondent has referred the Board to several cases
    from other forums which stand for the proposition that oral
    notice to the contractor within the warranty period is
    sufficient to invoke the remedies available to the Government
    where a breach has occurred.  Res. Opp., pp. 6-7 (citing,
    U.S. f.u.o. Contraction Products Corporation v. Bruce
    Construction Corporation, 272 F.2d 62 (5th Cir. 1959);
    Harwell Construction Company, ENG BCA No. PCC-30, 79-2 BCA 
    14,061).  However, the GPO "Warranty" clause clearly requires
    a written notice to the contractor.  GPO Contract Terms,
    Contract Clauses, Art. 15(b)(1).  The Board has stated on
    numerous occasions that it is not a creature of statute, but
    rather its authority is purely derivative and contractual,
    and thus it is limited to deciding disputes within the
    parameters of the contract under review.  See, e.g., McDonald
    & Eudy Printers, Inc., GPOBCA 40-92 (January 31, 1994), Sl.
    Op. at 7-8, fn. 10; Shepard (1993), supra, Sl. op. at 25, fn.
    29; The Wessel Company, Inc., supra, Sl. op. at 32-33; Bay
    Printing, Inc., GPO BCA 16-85 (January 30, 1987), Sl. op. at
    9; Peake Printers, Inc., GPO BCA 12-85 (November 12, 1986),
    Sl. op. at 6.  Since, the language in GPO's "Warranty" clause
    is unmistakable and unambiguous, an oral notification to the
    contractor is insufficient to trigger the Government's rights
    under its provisions.  Therefore, the cases cited by the
    Respondent are irrelevant to this appeal.
    21 The Board observes that the Respondent begins its Cross
    Motion argument under the heading "Appellant is Entitled to
    Judgment as a Matter of Law."  Cross Motion, p. 3.  Clearly,
    the reference to "Appellant" instead of "Respondent" is an
    inattentive or inadvertent error, and not a concession on
    GPO's part.
    22 The fact that the Respondent is pursuing a summary ruling
    in its favor on a ground other than the one given by the
    Contracting Officer when he defaulted the contract, does not
    make the Cross Motion invalid.  As the Board has observed, a
    contracting officer's termination decision may be sustained
    on other than the stated grounds as long as the alternate
    grounds existed at the time of termination.  See, e.g,
    Sterling Printing, Inc., supra, Sl. op. at 37-38, fn. 50
    (citing, Joseph Morton Company, Inc. v. United States, [32
    CCF  73,277], 757 F.2d 1273, 1277 (Fed. Cir. 1985); James B.
    Beard, D.O., ASBCA Nos. 42677, 42678, 93-3 BCA  25,976, at
    129,171).
    23 The Board has no doubt that the parties exchanged
    proposals in an effort to settle their dispute prior to
    December 24, 1991.  App. A.,  21; Res. R.,  39, 41-43.
    However, it simply notes that R4 File, Tabs Q and T, as well
    as Tabs O, P, R, U and V, are all copies of post-default
    correspondence toward that end.  Indeed, the record discloses
    that before its contract was defaulted the Appellant's
    official position was: (a) the flight strips were not
    defective; (b) any problem with running the forms was due to
    the improper adjustment of the FAA printers; and (c) in any
    event, the contract was fully performed and the Contractor
    had no further obligations to the Government under it (R4
    File, Tabs J and L).
    24 Among other things, the Appellant repeats the same
    arguments based on the same facts, and relies on the same
    cases, it used to support in its own Motion for summary
    judgment.  App. Opp., pp. 7-10.  Those assertions need not be
    set forth again.  Furthermore, the Appellant contends that
    those facts, particularly the Respondent's failure to
    promptly inspect and accept or reject the flight strips, or
    notify the Contractor of the FAA's complaints, warrant the
    conclusion that GPO's right to terminate for default may well
    have been lost by its prior material breach of the contract.
    App. Opp., p. 10 (citing, Malone v. United States, 849 F.2d
    1441, 1445-46 (Fed. Cir. 1988); Brand S Roofing, ASBCA No.
    24688, 82-1 BCA  15,513, at 76,958; GPO Contract Terms,
    Contract Clauses, Arts. 14(c),(j)).  Moreover, the Appellant
    contends, for the first time, that the Contracting Officer's
    termination for default might be procedurally defective,
    because "none of GPO's submissions indicates that the pre-
    default procedures required by GPO's printing procurement
    regulations . . . were followed in this case; nor has GPO
    included in the Rule 4 File a copy of the Contracting
    Officer's memorandum to GPO's Contract Review Board seeking
    approval to terminate the contract for default."  See, App.
    Opp., pp. 6, 11 (citing, Brill Brothers, Inc., ASBCA No.
    42573, 93-2 BCA  25,795; PPR, Chap. XIV, Sec. 1,  3).  In
    that regard, GPO's printing procurement regulation provides
    that the Contracting Officer must submit a proposal to
    terminate a contract for default to the Contract Review Board
    (CRB) for its review and concurrence.  See, Hurt's Printing
    Company, Inc., supra, Sl. op. at 7, fn. 10 (citing, PPR,
    Chap. I, Sec. 10,  4.b(i)).  See also, Graphics Image, Inc.,
    supra, Sl. op. at 9, fn. 10.  On the other hand, the
    regulation also allows the Contracting Officer to take an
    action contrary to the position of the CRB, provided that the
    CRB's Chairperson is promptly notified and the reasons for
    the contrary action are reduced to writing and made part of
    the permanent file.  Id. (citing, PPR, Chap. I, Sec. 10, 
    3.b.).  As a rule, Government acts are presumed to be regular
    and authorized.  See, United States v. Roses, Inc., 706 F.2d
    1563, 1567 (Fed. Cir. 1983).  The fact that the Contracting
    Officer's CRB memorandum is not in the appeal file is not
    proof that it does not exist, or that the Contracting Officer
    failed to carry out his responsibilities under the GPO's
    regulations before defaulting the Appellant.  In any event,
    none of these matters can be resolved in the context of this
    summary proceeding, but will have to await the evidentiary
    hearing which the Board intends to order in this case.
    Accord, Brill Brothers, Inc., supra, 93-2 BCA  25,795, at
    128,358; Stanley Machining & Tool Company, Inc., ASBCA No.
    44177, 92-3 BCA  25,195, at 125,545-46.  For the purposes of
    this decision, the Board has confined its description of the
    Appellant's opposition to the Cross Motion to the ground
    actually asserted by the Respondent-that the Contractor
    failed to comply with the Contracting Officer's direction to
    replace the defective flight strips.
    25 The Board Rules specifically identify only two types of
    motions; i.e., motions for dismissal for lack of jurisdiction
    and motions for reconsideration.  See, Board Rules, Rules 5,
    12.4 (reconsideration in small claims (expedited) and
    accelerated procedure cases) and 29 (reconsideration in cases
    conducted under the regular procedure).
    26 Default terminations-as a species of forfeiture-are
    strictly construed. See, D. Joseph DeVito v. United States,
    188 Ct. Cl. 979, 413 F.2d 1147, 1153 (1969).  See also,
    Murphy, et al. v. United States, 164 Ct. Cl. 332 (1964); J.
    D. Hedin Construction Co. v. United States, 187 Ct. Cl. 45,
    408 F.2d 424 (1969).  Indeed, in the words of one contract
    appeals board, in exercising its right to terminate for
    default, the Government must "turn square corners in order to
    prevail."  Delfour, Inc., supra, 89-1 BCA  21,394, at
    107,855 (citing, K & M Construction, ENG BCA Nos. 2998, et
    al., 73-2 BCA  10,034).  The board was quick to add,
    however, that this did not mean " . . . that the Government
    [needed to] display clairvoyance [or] the patience of Job in
    the management of its contracts."  Id.  On the other hand,
    because a default termination is a discretionary act, it must
    be reasonably exercised.  Darwin Construction Company, Inc.
    v. United States, 811 F.2d 593 (Fed. Cir. 1987).
    27 One of the principal purposes of summary judgment is to
    isolate and dispose of factually unsupported claims or
    defenses.  Celotex Corporation v. Catrett, 477 U.S. 317,
    323-24 (1986).  As a consequence, the procedure is deemed "an
    integral part of the Federal Rules as a whole, which are
    designed `to secure the just, speedy and inexpensive
    determination of every action.'"  Id., at 327 (citing, FED.
    R. CIV. P. 1; Schwarzer, Summary Judgment under the Federal
    Rules: Defining Genuine Issues of Material Fact, 99 F.R.D.
    465, 467 (1987)).  See also, Board Rules, Preface to Rules, 
    VI.C.  Indeed, district courts have the power to enter such
    judgments sua sponte, provided that the losing party has
    notice that it must come forward with all of its evidence.
    Celotex Corporation v. Catrett, supra, 477 U.S. at 326
    (citing, 10A C. Wright, A. Miller & M. Kane, Federal Practice
    and Procedure,  2720, pp. 28-29 (1983)).  While courts are
    reluctant to deprive a litigant of the right to a jury trial,
    nonetheless they recognize that the summary procedure,
    "properly employed," is a useful device for unmasking
    frivolous claims and putting a swift end to meritless
    litigation.  IBM Poughkeepsie Employees Federal Credit Union
    v. Cumis Insurance Society, Inc., supra, 590 F.Supp. at 771
    (citing, Quinn v. Syracuse Model Neighborhood Corporation, 63
    F.2d 438, 445 (2d Cir. 1980); Applegate v. Top Associates,
    Inc., 425 F.2d 92, 96 (2d Cir. 1970)).  However, courts
    always have discretion to deny the motion even where the
    moving party seems to have discharged its summary judgment
    burden.  See, e.g., Flores v. Kelley, 61 F.R.D. 442 (D.Ind.
    1973); John Blair & Co. v. Walton, 47 F.R.D. 196, 197 (D.Del.
    1969).  In such cases, the thinking is that regardless of
    whether the burden is met, the court should have the freedom
    to allow the case to continue when it has any doubt as to the
    wisdom of terminating the action prior to a full trial.  See,
    e.g., Baca v. United States, 29 Fed.Cl. 354, 358 (1993)("A
    trial court may deny summary judgment, if `there is reason to
    believe that the better course would be to proceed to
    trial.'"  [Citation omitted.])  See also, Olberding v.
    Department of Defense, et al., 564 F.Supp. 907, 908, fn. 1
    (D.Ia. 1982), affirmed 709 F.2d 621 (8th Cir. 1983).
    Furthermore, where difficult legal issues are involved, the
    court can refuse summary judgment on the ground that a fuller
    development of the facts may serve to clarify the law or help
    indicate its application to the case.  See, e.g., Davidson v.
    Stanadyne, Inc., 718 F.2d 1334, 1339, (5th Cir. 1983);
    Security Pacific National Bank v. OL.s. Pacific Pride, O/N,
    549 F.Supp. 53, 55 ((D.Wash. 1982).  Most boards of contract
    appeals approach summary judgment in default termination
    cases with a liberal view of what constitutes a genuine issue
    of material fact, and will apply an extra measure of caution
    before granting the motion.  See, e.g., 330 Main Street
    Associates Limited Partnership (contract interpretation
    issue), GSBCA No. 9477, 91-2 BCA  23,981;  Lou Faro Leasing,
    Inc., PSBCA No. 2889, 91-2 BCA  23,668 (unresolved safety
    issue); Dowty Batteries (Loudwater), ASBCA No. 39811, 91-1
    BCA  23,396 (unresolved excusability issue); Foremost
    Threaded Products, GSBCA No. 10091, 90-3 BCA  22,980
    (unresolved contracting authority issue); Sonora
    Manufacturing, Inc., ASBCA Nos. 31589, 31591, 89-1 BCA 
    21,553 (unresolved excusability and contract formation
    issues).  See also, Castillo Printing Company, supra, Sl. op.
    at 39-41 (contract interpretation issue).
    28 Generally, a fact is material if it tends to resolve any
    of the issues that have been properly raised by the parties.
    See, e.g., Contemporary Mission, Inc. v. New York Times Co.,
    665 F.Supp. 24, 257 (D.S.D.N.Y. 1987), affirmed 842 F.2d 612
    (2nd Cir. 1988), cert. denied 109 S. Ct. 145 (1989); Hahn v.
    Sargent, 523 F.2d 461 (1st Cir. 1975), cert. denied 425 U.S.
    904 (1976).  See also, Tracor Resources, Inc., ASBCA No.
    44759, 93-2 BCA  25,616, at 127,515.  Consequently, in
    ruling on motions for summary judgment Federal courts have
    held that a fact or facts are material if they constitute a
    legal defense, or if their existence or nonexistence might
    affect the result of the action, or if the resolution of the
    issue they raise is so essential that the party against whom
    it is decided cannot prevail, or if they would permit a
    reasonable finder of fact to return a verdict in favor of the
    nonmovant.  See, e.g., Weiss v. Marsh, 543 F.Supp. 1115, 1116
    (D.Ala. 1981) (legal defense); Anderson v. Liberty Lobby,
    Inc., 477 U.S. 242, 248 (1986) (affect result of action);
    Alvarado Morales v. Digital Equipment Corporation, 669
    F.Supp. 1173, 1178 (D.P.R. 1987) (cannot prevail); Bataco
    Industries, Inc. v. United States, 29 Fed.Cl. 318, 322 (1993)
    (verdict in favor of nonmovant).  Similarly, courts have used
    a variety of shorthand expressions to indicate whether a
    genuine factual issue exists.  Thus, summary judgment is not
    warranted as long as the "slightest doubt" remains as to the
    facts, or alternatively, that summary judgment should be
    granted only when the movant is entitled to it "beyond all
    doubt." See, e.g., Schwatrzbord v. United States, 575 F.Supp.
    1560, 1561 (D.S.D.N.Y. 1983); Anderson v. Liberty Lobby,
    Inc., supra (slightest doubt); Evans v. McDonnell Aircraft
    Corporation, 395 F.2d 359 (8th Cir. 1968); United States v.
    White, 40 F.R.D. 27 (D.Ark. 1964) (beyond a "reasonable"
    doubt).  The thrust of all these formulations is the same-a
    movant is not entitled to summary judgment merely because its
    facts appear more plausible than those tendered in
    opposition, or because it appears that the adversary is
    unlikely to prevail at trial.  See, e.g., H. E. Reeves, Inc.
    v. Laredo Ready Mix, Inc., 589 F.Supp. 132 (D.Tex. 1984);
    Harl v. Acacia Mutual Life Insurance, 317 F.2d 577 (D.C.Cir.
    1963).  If the evidence presented on the motion is subject to
    conflicting interpretations or reasonable persons might
    differ as to its significance, summary judgment is improper.
    See, e.g., Sears, Roebuck & Co. v. General Services
    Administration, 553 F.2d 1378 (D.C. Cir. 1977), cert. denied
    434 U.S. 826 (1978); United States v. Conservation Chemical
    Company, 619 F.Supp. 162 (D.Mo. 1985); United States v.
    General Motors Corporation, 65 F.R.D. 115 (D.D.C. 1974).
    29 In Celotex Corporation v. Catrett, the United States
    Supreme Court stated:  "[T]he plain language of Rule 56(c)
    mandates the entry of summary judgment, after adequate time
    for discovery and upon motion, against a party who fails to
    make a showing sufficient to establish the existence of an
    element essential to that party's case, and on which that
    party will bear the burden of proof at trial.  In such a
    situation, there can be `no genuine issue as to any material
    fact,' since a complete failure of proof concerning an
    essential element of the nonmoving party's case necessarily
    renders all other immaterial."  Celotex Corporation v.
    Catrett, supra, 477 U.S. at 322-23. [Emphasis added.]  The
    Supreme Court also added that the burden on the party moving
    for summary judgment is an affirmative one and is not met
    merely by disproving the unsupported claims of its opponent.
    Id., at 323.  Although the Supreme Court's opinion requires
    summary judgment if the nonmoving party cannot show that it
    will be able to establish an essential element of its case,
    as previously mentioned, the Board's research indicates that
    agency contract appeals boards are somewhat less inclined to
    grant such a motion on the same set of facts than are the
    courts.  See, note 27 supra.  The Board suspects that the
    reason for this apparent leniency on the part of the boards
    has something to do with the nature of the administrative
    process itself.  In that regard, the Supreme Court instructs
    that: "Rule 56 must be construed with due regard not only for
    the rights of persons asserting claims and defenses that are
    adequately based in fact to have those claims and defenses
    tried to a jury, but also for the rights of persons opposing
    such claims and defenses to demonstrate in the manner
    provided by the Rule, prior to trial, that the claims and
    defenses have no factual basis."  Celotex Corporation v.
    Catrett, supra 477 U.S. at 327.  [Emphasis added.]
    Administrative proceedings, of course, are not intended to
    confront the parties with all the rigors of courtroom
    litigation before a jury.  Furthermore, it is axiomatic that
    in administrative hearings the strict rules of evidence do
    not apply.  Federal Trade Commission v. Cement Institute, 333
    U.S. 683, 705-06 (1948).  See also, Donovan v. Sarasota
    Concrete Company, 693 F.2d 1061, 1066 (11th Cir. 1982);
    Calhoun v. Bailar, 626 F.2d 145, 148 (9th Cir. 1980).  The
    twin tests for the admission of evidence submitted in an
    administrative proceeding are relevancy and materiality, and
    not strictly whether the proof is admissible in a court
    proceeding.  Grant Associates, Inc. v. United States, 11
    Cl.Ct. 816 (1987).  Thus, an administrative body may exclude
    evidence otherwise admissible under the Federal rules.  See,
    Carpenter Sprinkler Corporation v. National Labor Relations
    Board, 605 F.2d 60,66 (2d Cir. 1979).  Perhaps the best known
    difference between the courts and administrative bodies is
    the use of hearsay evidence, which is fully admissible in
    administrative proceedings.  See, Evosevich v. Consolidation
    Coal, 789 F.2d 1021 (3rd Cir. 1986); Williams v. Department
    of Transportation, 781 F.2d 1573 (11th Cir. 1986), rehearing
    denied, 794 F.2d 687 (1987).  In that regard, hearsay proof
    is allowed if it is relevant and material, see, Veg-Mix, Inc.
    v. Department of Agriculture, 832 F.2d 601 (D.C. Cir. 1987),
    and otherwise reliable, adequate, probative and fundamentally
    fair.  See, e.g. Mobile Consortium of CETA Alabama v.
    Department of Labor, 745 F.2d 1416 (11th Cir. 1984); Diaz v.
    Postal Service, 658 F.Supp. 484 (E.D. Cal. 1987).  See also,
    Pitts on behalf of Pitts v. United States, 1 Cl.Ct. 148
    (1983).  Therefore, while Celotex Corporation v. Catrett, a
    5-4 Supreme Court decision with no majority opinion, is
    certainly instructive (although somewhat confusing, as
    predicted by Justice Brennan in his dissent, see, 477 U.S. at
    329), the Board is not persuaded that its rigid view of
    summary judgment can, or should be applied in an
    administrative context.
    30 The Federal Rules provide: "[A]n adverse party may not
    rest upon the mere allegations or denials of his pleadings,
    but his response, by affidavits or as otherwise provided in
    this rule, must set forth specific facts showing that there
    is a genuine issue for trial.  If he does not so respond,
    summary judgment, if appropriate, shall be entered against
    him."  FED. R. CIV. P. 56(e).  See, Celotex Corporation v.
    Catrett, supra, 477 U.S. at 324; First National Bank of
    Arizona v. Cities Service Co., 391 U.S. 253, 289 (1968);
    Mingus Constructors, Inc. v. United States, 812 F.2d 1387,
    1390-91 (Fed. Cir. 1987).  See also, Do-Well Machine Shop,
    Inc., ASBCA No. 34898, 89-1 BCA  21.491, at 108,281; Ite
    Incorporated, supra, 88-1 BCA  20,269, at 102,595.
    31 On October 22, 1992, certain provisions of the Federal
    Courts Administration Act of 1992, Pub. L. No. 102-572, 106
    Stat. 4506 (1992), became effective.  Pursuant to Title IX,
    the United States Claims Court was renamed the United States
    Court of Federal Claims.
    32 See, GPO Contract Terms, Contract Clauses, Art. 15(k).  As
    defined by the GSBCA, a latent defect is one "which cannot be
    discovered by observation or inspection made with ordinary
    made with ordinary care."  ABM/Ansley Business Materials v.
    General Services Administration, supra, 93-1 BCA  25,246, at
    125,749 (citing, Santa Barbara Research Center, ASBCA 27831,
    88-3 BCA  21,098, at 106,515).  See also, General Electric
    Company, ASBCA Nos. 36005, 38152, 91-3 BCA  24,353, at
    121,689-91.  In order to set aside acceptance on a latent
    defect theory, ". . . the Government must prove, by a
    preponderance of the evidence, that the defect existed, but
    could not reasonably have been detected, at the time of final
    acceptance."  ABM/Ansley Business Materials v. General
    Services Administration, supra, 93-1 BCA  25,246, at 125,749
    (citing, Santa Barbara Research Center, supra, 88-3 BCA 
    21,098, at 106,516; Makoor Products Manufacturing Company,
    GSBCA No. 5779, 81-1 BCA  15,135, at 74,867).  See also,
    Ahern Painting Contractors, Inc., GSBCA Nos. 7912, 8368,
    8697, 90-1 BCA  22,291, at 111,954 (citing, Kaminer
    Construction Corporation v. United States [19 CCF  82,736],
    203 Ct.Cl. 182, 488 F.2d 980 (1973)).  The Government cannot
    rely on the mere fact of a defect to prove its existence;
    i.e., a "res ipsa loquitur" argument is no substitute for
    hard proof and is not favored by contract appeals boards.
    Cannon Structures, Inc., AGBCA No. 90-207-1, 93-3 BCA 
    26,059, at 129,541; ABM/Ansley Business Materials v. General
    Services Administration, supra, 93-1 BCA  25,246, at
    125,749-50 (citing, Santa Barbara Research Center, supra,
    88-3 BCA  21,098, at 106,516).   Neither party has raised
    the latent defect issue in this proceeding, so the Board does
    not need to address it.  However, the positions taken by the
    parties during their exchange of settlement proposals-the
    Respondent insisted that the flight strips were defective
    while the Appellant was just as adamant that any problem with
    running the forms was due to the improper adjustment of the
    FAA printers, see, note 23 supra-indicates to the Board that
    the latent defect issue is lurking in the bushes.  See, RBP
    Chemical Corporation, supra, Sl. op. at 27.  See also,
    Transit Products Company, Inc., ENG BCA Nos. 4796, 4804, 88-2
    BCA  20,673, at 104,492.
    33 Although neither party pressed the issue, both the
    Appellant and the Respondent briefly addressed the question
    of whether the Government had waived its right to reject the
    flight strips and default the contract under the facts of
    this case.  See, Motion, p. 6; Res. Opp., pp. 7-8.  The
    answer to that question essentially depends on whether the
    delay between the delivery of the flight strips in November
    1990, the Contracting Officer's decision to reject
    221,760,000 of them in June 17, 1991, seven months later, and
    his default action on December 24, 1991, more than a year
    after the Appellant was paid for the job, was an unreasonable
    amount of time under the circumstances, thus causing the
    Government to lose its right to terminate the contract.  See,
    D. Joseph DeVito v. United States, supra, 188 Ct. Cl. 979,
    413 F.2d at 1154.  See also,  Professional Divers, ASBCA No.
    37117, 89-3 BCA  22,251; Thiokol Corporation, ASBCA No.
    32629, 89-3 BCA  22,063); The Florsheim Co., ASBCA No. 8023,
    1964 BCA  4,425; Randam Electronics, Inc., ASBCA No. 9006,
    1964 BCA  4,207; Cudahy Packing Co. v. United States, 109
    Ct.Cl. 833, 75 F.Supp. 394 (1948).  (The same question was
    present in RBP Chemical, where a year elapsed between the
    date the developer was delivered to GPO-January 2, 1990-and
    the date the contract was terminated for default-January 3,
    1991.  See, RBP Chemical, supra, Sl. op. at 19, fn. 16.
    However, the issue was never litigated because the parties
    settled the case after the Board denied GPO's motion for
    summary judgment.)  What constitutes a reasonable time, and
    hence a reasonable forbearance period under the law of
    "waiver" or "Government estoppel" for the Contracting Officer
    to investigate the facts and to determine what course of
    action would be in the best interest of the Government as the
    non-defaulting party, is a question of fact which must be
    determined on a case by case basis.  See, Snowbird
    Industries, Inc., ASBCA No. 31368, 88-2 BCA  20,618, at
    104,210 (citing, Cudahy Packing Co. v. United States, supra,
    109 Ct.Cl. 833, 75 F.Supp. 394); Stephenson, Inc., supra, Sl.
    op. at 21-22.  Consequently, when the time taken by the
    Government to act in its best interest raises the question of
    whether it was reasonable or not, and the parties are in
    dispute on that issue, summary judgment cannot be granted.
    See, Danrenke Corporation, VABCA No. 3601, 93-1 BCA  25,365,
    at 126,337; Snowbird Industries, Inc., supra, 88-2 BCA 
    20,618, at 104,210.
    34 The rationale for this dual application of the default
    clause is simple.  As explained by Cibinic and Nash:  "While
    these clauses explicitly make untimely performance the basis
    for the default action, it is important to recognize that
    nearly every Government contract spells out the contractor's
    required performance in terms of the nature of the product or
    service which is to be delivered or performed as well as the
    time by which these performance efforts are to be completed.
    Thus, in order for the contractor to render `timely
    performance,' two basic requirements must be satisfied.  The
    product, service, or construction work must conform to the
    required design/performance characteristics, and the product
    must be delivered or the work completed by the specified due
    date."  [Emphasis added.]  John Cibinic, Jr. & Ralph C. Nash,
    Jr., Administration of Government Contracts 2d ed., (The
    George Washington University, 1986), p. 677.
    35 The doctrine has its roots in the standard "Disputes"
    clause found in Government contracts.  See, FAR 
    52.233-1(h).  The statutory underpinning for this contractual
    provision is to be found in the Contract Disputes Act of
    1978, 41 U.S.C.  601 et seq., which provides: "Nothing in
    this chapter shall prohibit executive agencies from including
    a clause in government contracts requiring that pending final
    decision of an appeal, action, or final settlement, a
    contractor shall proceed diligently with performance of the
    contract in accordance with the contracting officer's
    decision."  41 U.S.C.  605(b).  The comparable contract
    language in GPO contracts is in paragraph (d) of the
    "Disputes" clause.  See, GPO Contract Terms, Contract
    Clauses, Art. 5 (d).
    36 A contractor who performs as directed and appeals, and
    then prevails on the merits, would be entitled to an
    equitable adjustment in the amount due and/or in the time
    required for performance.  See, International Lithographing,
    supra, Sl. op. at 25.  Accord, Charles Wiggins d/b/a Wiggins
    Construction, ASBCA Nos. 4022, 4613, 58-1 BCA  1,644.
    37 The Board does not ". . . mean to imply that these are the
    only questions that may be raised or that they are
    necessarily the questions that will ultimately determine the
    outcome of the appeal.  With the benefit of a hearing these
    matters will hopefully become clearer."  Fletcher & Sons,
    Inc., VABCA No. 2212, 86-3 BCA  19,123, at 96,658.
    38 Indeed, for the Board to resolve the factual conflicts
    that emerge from the parties' papers would necessitate "trial
    by affidavit," which has long been regarded as an abuse of
    the summary judgment procedure.  See, Erie Tool Works, supra,
    89-1 BCA  21,316, at 107,490 (citing, Poller v. Columbia
    Broadcasting System, Inc., 368 U.S. 464,473 (1962)).